August 29, 2012

Lawsuit seeking unpaid wages for BUILD trainees could expand, as plaintiffs' lawyers get OK to contact other 29 trainees

Atlantic Yards Report

The number of potential plaintiffs could grow in the lawsuit against Brooklyn United for Innovative Local Development (BUILD) and others for failure to pay trainees for roughly two months of work they did helping build a house on Staten Island.

Seven of the 36 people in a coveted Pre-Apprenticeship Training Program filed suit last November in federal charging not only violations of the Fair Labor Standards Act but also that they were promised union cards and careers.

The suit not only targets BUILD but Forest City Ratner, which supported the organization, a Community Benefits Agreement signatory, as well as individual executives, along with the company that did the training.

The lawsuit, though the charges were narrowed, survived a motion to dismiss. Now the plaintiffs can try to add some of the other 29 people from the program, but only for the claim of unpaid wages, not damages for the promised union cards.

August 11, 2012

"The Case of the Brooklyn Basketball Arena" makes the Commercial Observer's list of "15 Most Fascinating New York Real Estate Cases"

Atlantic Yards Report

The Commercial Observer, in its list of the 15 Most Fascinating New York Real Estate Cases of the 21st Century, offers The Case of the Brooklyn Basketball Arena:

To its opponents, Forest City Ratner’s controversial plan to build a basketball arena and 16 commercial and residential high-rise buildings above the former Atlantic Terminal rail yards had all the elements of a land grab, much like the ones orchestrated decades earlier by Robert Moses.
But with few exceptions, the cadre of judges who ruled on the case between 2003 and 2011 has thought differently, deciding that, besides seizing property from residents in Prospect Heights, the powerful Cleveland-based developer should go ahead with plans to build in one of Brooklyn’s most congested neighborhoods, bypass city land-review procedures and amend many of its original plans.
A group of rent stabilized tenants near the arena’s footprint and Develop Don’t Destroy Brooklyn, one of the most visible opponents of the project, filed approximately eight lawsuits over six years, charging the developer with a litany of accusations, including failing to provide an independent appraisal of the yards.
And while the opponents have claimed several small victories, the developer and its supporters have declared victory in nearly two dozen cases.
Despite the deluge of legal attacks, the Brooklyn Nets season opener is set to happen this fall. But even before that happens, Jay-Z, the hip-hop impresario and Brooklyn Nets investor, is set to perform at the Barclays Center later this month.

...

This gets complicated, so let me offer several smaller corrections and one larger one. The first ruling in the list of cases was in 2006, on a case challenging Forest City Ratner's demolition plans, as well as the state's use of a lawyer who formerly worked for the developer.

Jay-Z's first concert is Sept. 28, not "this month." And if there were "approximately eight lawsuits," how could there be "nearly two dozen cases"? (Maybe "rulings.") And the cases were filed not merely by rent-stabilized tenants and DDDB.

Yes, DDDB organized most of the cases, but the eminent domain cases involved individual plaintiffs, while the challenge to the environmental review, as well as the challenge to the MTA deal revision and the 2009 approval by the Empire State Development Corporation, involved numerous civic groups.

The latter case, in fact, was combined with another case filed by the BrooklynSpeaks coalition, involving more civic groups. And elected officials signed on to two of the cases.

In three decisions, two of them community victories, state Supreme Court Justice Marcy Friedman criticized a failure of transparency by the Empire State Development Corporation (ESDC), the state agency overseeing the project, in failing to study the impacts of a potential 25-year project buildout.

First, in March 2010, Friedman upheld the ESDC, despite criticizing the agency's "deplorable lack of transparency."

Then, November 2010, she cited "what appears to be yet another failure of transparency" and requested new findings.

Then, in July 2011, she concluded:

ESDC’s use of the 10 year build date in approving the 2009 MGPP [Modified General Project Plan] lacked a rational basis and was arbitrary and capricious.

The ESDC and Forest City Ratner appealed, only to be smacked down by the Appellate Division, which unanimously stated:

We agree with Supreme Court that ESDC's use of a 10-year build date under these circumstances lacks a rational basis and is arbitrary and capricious.

By the standards of the state court system, those rulings are significant, since the "rational basis" bar is a low one, and judges rarely intervene into agency decisions. The defendants, who didn't have an automatic appeal at the Court of Appeals, asked for leave to appeal, but were denied.

July 16, 2012

A-Yards Backers Lose Their Appeal

Civic News
by David Herman

Honestly, they never had much appeal to start with.

In a final defeat for Forest City Ratner and the Empire State Development Corporation, the New York State Court of Appeals has upheld an earlier ruling that requires a supplemental environmental impact study (SEIS) for the Atlantic Yards megaproject.

The court denied the appeal by the developer and the agency to overturn State Supreme Court Justice Marcy Friedman’s 2011 decision ordering a new study of the effects of construction on surrounding communities over a 25-year period.

July 3, 2012

City Agency Admits Illegal Lobby Effort

The Wall Street Journal
by Michael Howard Saul

Is there anyone or anything associated with the Atlantic Yards project that isn't crooked or corrupt? Anything?

New York City's economic-development agency and two related organizations admitted in a settlement Monday that they illegally lobbied the City Council on behalf of projects at the heart of Mayor Michael Bloomberg's redevelopment agenda.

The concessions came after a three-year probe by the state attorney general's office. Investigators found that the Economic Development Corp. worked behind the scenes with the groups—called local development corporations—to nudge lawmakers to support projects in Willets Point in Queens and Coney Island in Brooklyn.

"These local development corporations flouted the law and lobbied elected officials, both directly and through third parties," Attorney General Eric Schneiderman said in a statement.
...

The findings seemed to give ammunition to critics of the Bloomberg administration and its economic-development arm, which has been accused of pushing through large-scale projects over community objections.

Where've we seen this phony astroturf act before?

In pushing the Council for zoning and other land-use changes, city officials "took steps to foster the appearance of independent 'grass-roots' support for the projects in the local community," said the agreement signed Monday by the EDC and the other groups.

For example, the agreement said the EDC directed the Queens group to use its fax machine to send a letter drafted by city officials about the Willets Point project to Council members because, in the words of one city official, "we felt this letter coming from our fax machine would have been lobbying."

Other lobbying activities included ghostwriting op-eds and preparing testimony, according to the agreement.

June 28, 2012

Workers' Lawsuit Against Forest City Ratner Moves Forward

Developer and nonprofit ally accused of failing to deliver on promised construction jobs.

Park Slope Patch
by Will Yakowicz

A Federal Court ruled last week that Brooklyn construction workers accusing Atlantic Yards developer Forest City Ratner of failing to provide promised employment opportunities can proceed with their lawsuit.

In a 19-page decision, Brooklyn Federal Court Judge John Gleeson stated that seven Brooklyn construction workers who participated in a job training program created by FCRC and Brooklyn United for Innovative Development (BUILD) could sue for unpaid wages and a failure to provide union status.

The ruling is the latest legal wrinkle for FCRC, which this week lost its battle to avoid an entirely new environmental review based on an updated 25-year construction timetable.

June 27, 2012

Atlantic Yards faces a small setback

The state's top court ruled that the developer must forecast the Brooklyn project's effects over 25 years of construction, not 10.

Crain's NY Business
by Ian Thomas

Forest City Ratner and the Empire State Development Corp. must conduct a new supplemental environmental impact statement of the Atlantic Yards project, as the New York Court of Appeals revealed Tuesday that it would not hear an appeal of lower court rulings.

The developer and the state's development arm opened themselves up to the legal challenge by modifying the plan in 2009.

The plan for the Brooklyn project, which includes the nearly complete Barclays Center and was first unveiled in 2003, was changed when it became clear that it would take far longer than the original estimate of 10 years to complete because of the recession and lawsuits filed by opponents. They successfully argued that the environmental impact should examine the effects on the neighborhood from 25 years of construction.

"We're pleased the court did not hear the appeal," said Jeffrey Baker, a partner at the law firm of Young Sommer, which represents Develop Don't Destroy Brooklyn, a community group that was involved in bringing the original lawsuit back in November 2009. "This is an opportunity for the government to rethink and reformulate this project."

NoLandGrab: Let's be clear  the plan was never "changed." The 10-year claim was pure hogwash from the start. And the project will take far longer than 10 years to build due not to the recession or (completely warranted) lawsuits, but because there was no way it could ever have been built in 10 years.

New York State Court of Appeals denies ESDC and Forest City Ratner appeal of order to revisit 2009 Atlantic Yards plan

BrooklynSpeaks

In a final defeat for the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC) in their attempt to illegally extend construction of the Atlantic Yards project from 10 to 25 years, New York State’s highest court today denied their motion to appeal a July 2011 decision ordering a revisit of a 2009 modification to the plan and additional environmental analyses. ESDC and FCRC lost their previous appeal by a unanimous decision of the New York State Supreme Court Appellate Division. The denial by the New York State Court of Appeals means that the July order by Justice Marcy Friedman will stand, and the supplemental environmental impact study (SEIS) must proceed.

Bruce Ratner has lost his fourth court decision in a row. Today NY State's high court, the Court of Appeals, rejected the developer's (and the Empire State State Development Corporation's) request to appeal the lower court's unanimous upholding of the Supreme Court order that Atlantic Yards must undergo a Supplemental Environmental Impact Statement (SEIS).

The suit, originally brought by Develop Don't Destroy Brooklyn and other community organizations, has had a long and winding path. At the core the case is about the State's bogus claims (and subsequent impact study) that the project build out would be 10 years, when in actuality it will likely be 25 years at minimum, and thus the attendant impacts will be substantially different then the ones studied.

The ruling today and the previous ones show, thankfully, that NY courts can actually be a check against public agencies running amok on behalf of private interests.

The ruling also means that the bulk of the Atlantic Yards project will undergo an SEIS, which will include a public hearing.

The time is now for ESDC and Governor Cuomo to intervene to insure that Forest City Ratner doesn't hold a huge chunk of Prospect Heights hostage for the next generation.

June 26, 2012

Court of Appeals denies effort by ESDC, Forest City to appeal timetable case; state must analyze impact of 25-year buildout; will leave cloud over project as arena opening approaches

Atlantic Yards Report

Bruce Ratner's legal losing streak continues...

Yes, the Empire State Development Corporation will have to conduct a court-ordered analysis of the potential 25-year impacts of Atlantic Yards construction after all, leaving a cloud of concern over the project--and a rebuke to the state agency--as the Barclays Center proceeds to a September 28 opening.

The project was long expected to take ten years, but document signed in late 2009 gave developer Forest City Ratner 25 years.

More like long claimed to take ten years. Everyone knew there was no way it would get done in ten years, especially those making the claim.

The state agency, as well as Forest City, had sought to appeal a unanimous Appellate Division decision upholding a lower court's requirement of Supplemental Environmental Impact Statement (SEIS). The state Court of Appeals, in a decision issued without elaboration, denied permission for such an appeal. (Had the appellate court been split, an appeal would have been automatic.)

The decision to seek an appeal rather than pursue the SEIS and evaluate the impacts of an extended buildout had rankled community members who'd gone to court, in cases filed by two coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks.

The lower court ruling required an SEIS to evaluate Phase 2 of the project, the towers planned east of Sixth Avenue and the arena block, thus sparing the arena. However, many questions remain regarding the parking lot planned to serve the arena, located on the southeast block of the site, destined ultimately for towers.

June 20, 2012

Judge says lawsuit filed over "sham" training program can proceed, with key claims remaining against Forest City and BUILD; other claims dismissed

Atlantic Yards Report

In a preliminary victory in the case filed by by seven (of 36) participants in a pre-apprenticeship training program (PATP) promised as part of the Atlantic Yards Community Benefits Agreement (CBA), a federal judge this week agreed not to dismiss potentially costly claims that Forest City Ratner is responsible for failure to pay unpaid wages to the trainees for their entire training program, which plaintiffs' attorneys call a "sham."

Federal Judge John Gleeson did dismiss several aspects of the case filed against Forest City, executives Bruce Ratner and Jane Marshall, BUILD (Brooklyn United for Innovative Local Development), and BUILD CEO James Caldwell, but he rejected a motion to dismiss key claims, including the most contested claim during a court argument last month: whether Forest City and BUILD constituted "joint employers."

The argument concerned the plaintiffs' claim that, by signing the CBA, which promised the PATP, and funding and directing BUILD, that Forest City Ratner was responsible for the program. One plaintiff, recounting how he was promised a union card and a union job, said "I was robbed," when the case was announced last November.

An attorney for Forest City, BUILD, and their individual officers argued that the facts don't support "the economic reality test" as established in case law. But attorneys for the plaintiffs argued that this case was unusual, and Gleeson agreed, in his 19-page decision (below):

However, I cannot conclude at the pleadings stage that it was unreasonable, as a matter of law, for the Plaintiffs to rely on promises of union membership and jobs made to a small number of PATP participants by a major real estate enterprise that would employ tens of thousands of union workers.

To survive a motion to dismiss, a complaint must allege sufficient facts to state a claim to relief that is plausible on its face.

The legal process of discovery had already begun, and will continue, as plaintiffs' attorneys, who include Matthew Brinckerhoff, the chief lawyer on the Atlantic Yards eminent domain case, probe the relationship between Forest City and BUILD.

Plaintiffs' attorney Nicole Salk, who said Gleeson "really understood the main arguments," estimated that it would take at least six months before the next phase, which could be a motion for summary judgment, or a trial. Settlements in such cases are possible as well, though the plaintiffs this week just got more leverage.

June 19, 2012

Federal Court: Lawsuit against Forest City Ratner and BUILD to Move Forward

A federal judge in Brooklyn has decided that a group of Brooklyn residents may move forward on their lawsuit against Forest City Ratner and related entities based on unpaid wages and broken promises. In a 19-page decision, Judge John Gleeson of the Eastern District of New York held that the plaintiffs, participants in a sham job training program created by the Atlantic Yards developers and Brooklyn United for Innovative Development (BUILD), may proceed on their central claims against the defendants.

The decision affirms that the plaintiffs properly stated claims for unpaid wages under federal and state labor laws against all the defendants, who plaintiffs allege jointly operated the Pre-Apprenticeship Training Program (PATP). Judge Gleeson determined that although the trainees were not employees in the ordinary sense, they may still be entitled to be paid for their work. The judge held that all the defendants, including Bruce Ratner, may be liable for unpaid wages.

The court also found that the defendants may have engaged in deceptive acts or practices in violation of the New York General Business Law. The court based this determination on the allegations that the defendants recruited a large number of potential trainees with misleading promises of union membership and jobs. According to the decision, this constitutes a “sufficient public impact” to show a broad effect on consumers at large.

While some claims were dismissed as to certain defendants, the judge affirmed all the key aspects of the legal basis for the plaintiffs’ lawsuit. The defendants argued that the developers could not be held to promises to deliver union jobs. However, Judge Gleeson stated: “I cannot conclude . . . that it was unreasonable, as a matter of law, for the Plaintiffs to rely on promises of union membership and jobs made to a small number of PATP participants by a major real estate enterprise that would employ tens of thousands of union workers.”

For more information, please contact South Brooklyn Legal Services’ Nicole Salk at 718-237-5544 or Sarah Dranoff at 718-237-5578.

June 5, 2012

An effort to appeal Atlantic Yards timetable case: is dispute about routine delay, or agency deception and failure to study 25-year impact?

Atlantic Yards Report

The battle over the Atlantic Yards timetable--whether the state should have studied the community impacts of a 25-year buildout for a project long said to take a decade--is the longest-lasting Atlantic Yards court case and the first one with clear victories for project opponents and critics.

At issue is whether a change in timing of a project whose fundamental elements seem unchanged is a fundamental change.

And, depending on which side you consult, it's either a dangerous intervention by the judiciary into agency discretion or the last check on an out-of-control agency that failed to tell the public that it faced 25 years of construction, extended surface parking lots, and lingering vacant lots.

The challenge by two community coalitions was originally dismissed by a state Supreme Court judge, then reopened and ultimately reversed, with that decision unanimously backed by a state appellate court. Now the Empire State Development Corporation, the agency overseeing Atlantic Yards, and developer Forest City Ratner have asked the Court of Appeals to agree to hear an appeal.

Such an appeal is not automatic, given the unanimous nature of the intermediate court's decision, so an agreement to accept the appeal would suggest that the Court of Appeals--which conveniently ignored certain arguments in its November 2009 decision upholding eminent domain for Atlantic Yards--is leaning toward reversal.

If the appeal is denied, then the ESDC would have to conduct the Supplementary Environmental Impact Statement (SEIS) ordered by the lower courts.

June 4, 2012

Atlantic Yards site "now cleared but formerly blighted"? So claims Forest City Ratner in legal papers

Atlantic Yards Report

Norman Oder takes us on a trip to ESDC's bizarro world...

Sometimes something in a legal document makes your head spin. For example, consider a passage from Forest City Ratner's motion for leave to appeal the court decision ordering the Empire State Development Corporation to study the community impacts of a 25-year project buildout.

(I'll have more on the overall legal battle tomorrow.)

AY site now cleared?

On p. 7 of the document, Forest City Ratner's attorneys state that Atlantic Yards "is a major public-private undertaking that is intended to revitalize a now cleared but formerly blighted 22-acre site in Brooklyn."

(Emphasis added)

The blight's still here

It is neither "now cleared" nor "formerly blighted."

Indeed, the main "blighting" influence, the below-grade Vanderbilt Yard owned by the Metropolitan Transportation Authority, still operates. Forest City Ratner has yet to pay for that land, nor to build a deck and then housing.

Moreover, several pieces of the 22-acre site remain privately owned/controlled, including three houses on Dean Street east of Sixth Avenue, and the P.C. Richard lease on Site 5, known as the Shops at Atlantic Center, on the block bounded by Pacific Street and Flatbush and Fourth avenues.

As to whether the site is "now cleared but formerly blighted," consider that most of Block 1129, the southeast block of 1129, will serve as a "cleared" surface parking lot.

And surface parking lots, according to the Empire State Development Corporation's Blight Study, are underutilized and thus blighted.

Flashback: ESDC attorney once assured court that Forest City have "to bring the Project to completion by 2019, with sanctions imposed for any failure to do so"

Atlantic Yards Report

Way back in January 2010, as the last major Atlantic Yards legal case faced its first hearing, I pointed to a key point of dispute. In retrospect appears to be either a glaring untruth or, more charitably, an incredibly misguided prediction about the state of New York's capacity to negotiate with Atlantic Yards developer Forest City Ratner.

Which is Norman Oder's nice way of saying it's clearly a big, fat lie.

May 31, 2012

Whenever a new stadium is approved to be built or remodeled for a team, such as what has recently been approved in Minneapolis for the Vikings and in San Francisco for the Warriors, the controversy typically revolves around how these facilities are financed. The Brooklyn Nets, however, face a different series of legal issues as they prepare to move into their new home, the Barclay’s Center.

That should be faced, not face.

Back in 2003, real estate developer Forest City Ratner proposed the Atlantic Yards project – a multi-billion dollar plan to develop the Vanderbilt Yard and Prospect Heights, a neighborhood just outside downtown Brooklyn. Headed by then-Nets owner Bruce Ratner, the plan would come to include the future home of the Nets, the Barclays Center. About half of the proposed area was already owned by the city, but various private parties owned the remaining half. To acquire control of the remaining half, the state declared the area blighted and seized the property using eminent domain.

May 16, 2012

Why was Forest City Ratner not touched in the Yonkers case? Law prof suggests prosecutorial discretion regarding a potential conspiracy charge that would've been tough to win

Atlantic Yards Report

Some keeping watch on the recent Yonkers corruption trial, in which former Council Member Sandy Annabi and her political mentor, Zehy Jereis, were convicted, had to wonder why developer Forest City Ratner, the beneficiary of Annabi's vote flip to enable its huge Ridge Hill retail/residential project, went unscathed.

After all, while Annabi got nearly $200,000 from Jereis over eight years, and he got a far smaller sum from the two developers he worked with, Forest City's gain, in exchange for a no-show job it gave Jereis after the vote, was surely far greater.

Annabi's vote unlocked progress on a project on which Forest City had already spent some $70 million. Forest City's potential losses, from delay, from selling Ridge Hill to other investors, or from shrinking the project, could have been huge. And it only cost Forest City a commitment of $60,000 to Jereis, who ultimately was paid only for three months: $15,000.

May 14, 2012

State seeks to reverse Atlantic Yards decision

The Empire State Development Corp. insists that its earlier approval of the $5 billion project was not illegal, as it had examined the impacts of delays in construction as required.

Crain's NY Business
by Theresa Agovino

The Empire State Development Corp. filed a request on Friday to appeal an earlier court ruling which said that the agency illegally approved changes to Forest City Ratner's massive Atlantic Yards project in 2009 by failing to examine how the long-term construction would affect the neighborhood.

The agency must get permission to appeal because last month's decision by the Appellate Division of New York state was unanimous in affirming a July 2011 lower court ruling. That earlier ruling said that the Empire State Development Corp. violated the law by not conducting another environmental study of the $5 billion project when the plan was modified in 2009.
...

However, the project’s opponents believe that there is a very slim chance that the ESDC will be allowed to appeal because two courts found it acted illegally.

“We are disappointed in ESDC’s decision to bring an appeal instead of working with the community to make the project better and just do the environmental impact study,” said Jeffrey Baker, a partner at the law firm of Young Sommer, which is representing Develop Don’t Destroy Brooklyn, a group opposed to the project. “The appeal is a waste of resources.”

Yes, Empire State Development (ESD), the state agency overseeing Atlantic Yards, is not accepting defeat. It is seeking to appeal a unanimous loss last month in the Appellate Division, which upheld a lower court's requirement that a Supplementary Environmental Impact Statement (SEIS) be conducted to examine the impacts of a 25-year project buildout.

The effort may seem like a long shot, but state Court of Appeals has proven friendly to Atlantic Yards before--remember the November 2009 eminent domain decision. It must first agree to accept the appeal. The key part of the ESD's motion:

The Appellate Division's order requiring that a SEIS be prepared to study the impacts of a delay in the Project's construction schedule is an unprecedented expansion of SEQRA [State Environmental Quality Review Act] that would interfere not only with progress being made on the Atlantic Yards Project, but with the progress of other large-scale projects that are subject to delays due to adverse economic conditions or other circumstances.

"Shadow of uncertainty"

I'll have more once I see Forest City Ratner's expected companion motion, and the petitioners' response. But the ESD contends that the court decision "casts a shadow of uncertainty on Phase II of the Project," a shadow elongated by the preparation of the SEIS and the inevitable legal challenges it will prompt.

NoLandGrab: Any "shadow of uncertainty" has much more to do with the giant overreach of the Atlantic Yards project, and the shakiness of its developer's financial wherewithal, than with the state's court-ordered requirement to produce another sham environmental impact statement.

May 12, 2012

In the annals of Atlantic Yards battles, the half-hour argument in Brooklyn federal court yesterday was relatively undramatic. It concerned the lawsuit filed by seven (of 36) participants in a pre-apprenticeship training (PATP) program run by Atlantic Yards Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development) .

Nor was it conclusive, as U.S. District Judge John Gleeson gave no indication of where he was leaning on the motion to dismiss most but not all of the multiple charges, nor when he'd rule. Nor did the audience include any of the plaintiffs, who charged they were promised union cards and jobs at the Atlantic Yards site after entering the coveted program, or any of the defendants.

But the legal jousting concerned a significant issue: if the case stands as filed, it will concern damages that represent lost earnings from a union career, and paid potentially by deep-pocketed Forest City Ratner and two of its executives. And it will concern one of the big public promises behind Atlantic Yards, that the CBA would bring significant benefits to at least some people in the "community."

If the motion to dismiss is successful, the case will be reduced to an argument about smaller sums that represent unpaid wages from the training program, paid by less-established defendants BUILD and Orbin's Green Machine, the firm that conducted the training at a Staten Island site, and their officials.

May 10, 2012

Where were promised union jobs, and wages for training program? Lawsuit by trainees against BUILD, Forest City faces key court argument tomorrow; defendants ask judge to dismiss most but not all claims

The federal lawsuit filed last November against Forest City Ratner and job-training group BUILD (Brooklyn United for Innovative Local Development) faces a crucial hearing Friday, May 11, as a federal court will hear arguments on the defendants' motions to get most but not all of the charges dismissed.

Seven (of 36) people who went through a highly-competitive pre-apprenticeship training program (PATP) enumerated in the Atlantic Yards Community Benefits Agreement (CBA), sued BUILD, Forest City, and individual executives, as well as the company that BUILD found to provide unpaid training for them.

The plaintiffs, who sued on behalf of themselves and others similarly situated, seek to recover not only unpaid wages but also to recover damages based on what they call broken promises that led them to participate in a "sham employment training program."

Whatever the result of the motions, some version of the case will persist. If the motions are unsuccessful, the court argument will ultimately concern damages that represent lost earnings from a union career, and paid potentially by deep-pocketed corporate defendants.

If successful, the motions will reduce the case to an argument about smaller sums that represent unpaid wages from the training program, paid by less-established defendants. Note that a motion to dismiss must treat allegations as true, but argue that, as a matter of law, they are not valid.

The hearing will be at 11:30 am in U.S. District Court, Eastern District of New York, 225 Cadman Plaza East, Courtroom 6C South, Brooklyn, before Judge John Gleeson.

April 14, 2012

Walking between legal raindrops

Herald Sun

The shady dealings in Prospect Heights have been heard of even in Australia. In this article, the common catalyst for corruption for both State Senator's Carl Kruger and Zehy Jereis is found to be Forest City Ratner.

Interestingly, Kruger's troubles related to his dealings with one of the property developers who have ended up causing Jereis so much distress. The developer has never been charged with wrongdoing, or as the New York Times put it, "he has walked between the legal raindrops".

Court: Part of NYC's Atlantic Yards needs review

Thursday's state Supreme Court Appellate Division decision doesn't affect a key piece of the project: a new arena for the NBA's Nets. It's set to open in September.

But the ruling says the state-run Empire State Development Corp. must look again at the plan's second phase. That includes 11 high-rises.

Develop Don't Destroy Brooklyn and other community groups sued after the second-phase completion date was extended from 2016 to 2035. They say the ESDC needs to consider how decades more development will affect surrounding neighborhoods.

April 13, 2012

Court: More environmental analysis needed at Atlantic Yards project

As is (sadly) all to often the case, the Bergen Record's John Brennan is more on top of the Atlantic Yards story than most of his New York City brethren.

A New York State Appellate Court panel – in upholding New York Supreme Court Judge Marcy Friedman’s ruling from last July – dismantled the case made by the project’s backers, including ESDC, piece-by-piece.

To clarify up front for Nets fans who know that the $1 billion Barclays Center is scheduled to open in September: this ruling does not derail that opening.

But it does complicate matters for project developers who, in a second phase, are supposed to complete work on most of the 16 skyscrapers around the arena. That work, while of no direct impact on North Jersey sports fans, is of great importance in Brooklyn communities to when – or whether – the project ever produces anywhere near the jobs and affordable housing numbers touted when the project was in its pre-development stages years ago.
...

Sounds like ESDC has some ‘splainin’ to do. I’ll be curious to see if the mainstream New York media digs deeper, considering we have a multi-billion New York City project here – and successive court rulings rebuking the judgment of the state agency that is supposed to be the people’s watchdog to make sure the project rolls out properly.

NoLandGrab: If the ESDC hadn't failed to disclose material information, New York State Supreme Court Justice Marcy Friedman would likely have required a supplemental environmental review and state reauthorization that would have prevented Bruce Ratner from beating the December 31, 2009 deadline to secure tax-free financing, rendering him unable to raise the funds necessary to build. Therefore, from this point forward, we'll be referring to it as the "fraudulently constructed Barclays Center."

Opponents of the Atlantic Yards project — whose basketball arena is nearing completion at the corner of Atlantic and Flatbush Avenues — are demanding changes to the mega-development in the wake of an appellate court ruling today that officials violated state environmental law by allowing the project’s developer far more time to finish the job.

Proponents, or better put, Forest City's state lackeys, are singing a different tune...

Empire State Development Corporation Director Arana Hankin issued a statement: “Although Empire State Development is disappointed with the decision, we are fully committed to building a world-class development that will bring thousands of jobs and affordable housing to Brooklyn. The decision does not prevent the arena opening this fall, nor does it affect any aspect of Phase I development, and we will continue working toward the full build-out of the project.”

Brooklyn Council Member Letitia James who has long criticized the project said "its clear that if the facts regarding the impact of the development two years ago, the resulting decision would have halted construction." She added that she believes the decision will affect some of the community enhancing parts of the plan. "We can be almost certain at this point that the jobs and housing originally promised will not come to fruition any time soon...."

The ruling also backs community claims that there was something fishy about how the state agency went to bat for Forest City Ratner's $4.9 billion project. When the state chose not to study the environmental impact of an extended 25-year buildout in 2009, it helped Forest City meet a crucial deadline and save more than $100 million on tax-exempt bonds.

An attorney for Develop Don't Destroy, Jeffrey Baker, said his clients were "pleased that (Thursday's) ruling vindicates everything we've been saying since 2009."

"What's disappointing is that we now have further proof from this court that the arena would never have even started construction if EDSC and Forest City Ratner had been honest about the process," Baker said.

How the appellate court, in its way, backed up Lupica: "It was a hustle in broad daylight by Caring Bruce Ratner from the start"

Atlantic Yards Report

After the March 2010 Barclays Center groundbreaking, Daily News sports columnist Mike Lupica commented, "It was a hustle in broad daylight by Caring Bruce Ratner from the start."

The hustle wouldn't have worked without help from Ratner's partner in government, the Empire State Development Corporation, aka Empire State Development (ESD), which had recently completed a clever, devious move, withholding the Development Agreement for Atlantic Yards, thus obscuring the project timetable.

Now the ESD, courts have said definitively, chose expediency over candor, in order to get Atlantic Yards re-approved in 2009 and to enable that groundbreaking. However little the decision may change things on the ground, it's a moral victory and an important message about honest government and the lack thereof. That's news, though not everyone thinks so.

"But the reason why we think Forest City will go forward with this project, and we have every reason to believe so, is that we have a Development Agreement with Forest City that requires it to do so," agency attorney Philip Karmel said in court in January 2010, as detailed below. "I don't know what else ESDC can do."

Well, it could have released that document, which would have revealed how the developer had 12 years to build Phase 1 and 25 years for Phase 2, rather than incentives to get the whole thing done in a decade.

Brooklyn Critics Finally Win, But It Won't Effect Barclays Center

NetsDaily

"Won't effect Barclays Center?" Who writes this stuff? NetsDaily should maybe pony up a few bucks to hire a real, actual journalist to navigate the perils of effect vs. affect.

After years of trying, critics of Bruce Ratner's Atlantic Yards finally won a significant victory when a state appeals court ruled unanimously that later stages of the construction will need a new environmental review. The ruling does not affect either Barclays Center or the three high rise apartment towers planned around the arena.

Develop Don't Destroy Brooklyn (DDDB), BrooklynSpeaks and all of their co-plaintiff community groups have won another victory in court over the Empire State Development Corporation (ESDC) and Forest City Ratner—their second in a row.

In a unanimous decision, the Appellate Division of the New York State Supreme Court today found that Justice Marcy Friedman correctly ruled in July 2011 that the ESDC's 2009 approval of Atlantic Yards' Modified General Project Plan violated State environmental law.

The decision upholds the lower court's order that the ESDC initiate a Supplemental Environmental Impact Statement (SEIS) and new approval process on Phase 2 of the Atlantic Yards project, which includes the bulk of the 22 acre project and the bulk of the non-arena portion of the demolished site.

A public hearing on the SEIS will be mandatory.
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"The fact is that the project should never have been approved at all—it is entirely illegitimate," said DDDB's legal director Candace Carponter. "The tragedy here is, but for the blatant misrepresentations to the Court by Forest City Ratner and ESDC, it would been determined in 2010 that an SEIS was required and that would have stopped construction of Barclays Arena. ESDC's dishonesty has allowed that to go forward and the community is already feeling the adverse impacts that have long been forecast. We hope that ESDC will abandon its servile devotion to Forest City Ratner and start representing the citizens of this area."

In a unanimous decision with almost no chance for appeal, a state appellate court has unanimously upheld a lower court's decision to require the state to conduct a Supplemental Environmental Impact Statement regarding the second phase of Atlantic Yards and to re-approve the second phase.

In other words, the state should not have misled the public with its irrational insistence that Atlantic Yards could be built in a decade rather than, as is likely, a much longer period, even 25 years, as allowed by a belatedly released Development Agreement.

Nor did the state analyze the possibility of a scenario "in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades."

The case, known as Matter of Develop Don't Destroy (Brooklyn), Inc. v Empire State Dev. Corp., involves two sets of petitioners, a coalition led by Develop Don't Destroy Brooklyn and another led by members of Brooklyn Speaks. Both the Empire State Development Corporation (aka Empire State Development) and Forest City Ratner were defendants.

The decision has no impact on the Barclays Center arena, but complicates Forest City Ratner's plans regarding Phase II and casts a further shadow over the questionable approval process for the project. It also endorses skepticism about whether the promised jobs and affordable housing will be delivered in the long-promised ten years.

The defendants can appeal, but given the unanimous decision and the emphatic language, it's very unlikely.

In a unanimous decision, the Appellate Division of the New York State Supreme Court today found that Justice Marcy Friedman correctly ruled in July 2011 that the Empire State Development Corporation’s (ESDC) 2009 approval of Atlantic Yards’ Modified General Project Plan violated State environmental law. Among other changes, the plan renegotiated in 2009 between the State and Forest City Ratner Companies (FCRC) extended Atlantic Yards’ construction schedule from 10 to 25 years. Justice Friedman’s order that the ESDC conduct additional environmental analyses and revisit the project plan will remain in effect.

“ESDC’s decision to appeal was deeply disappointing both to the community and to its elected representatives, who had pressed the agency to comply with the court order,” said Jo Anne Simon, 52nd District Democratic Leader. “Now that the Appellate Division has upheld the lower court’s decision, we strongly urge Governor Cuomo to act to restore credibility to this process, and direct his agency to conduct a thorough and transparent assessment of the environmental impact of this project on central Brooklyn that involves our communities in a meaningful way.”

BrooklynSpeaks sponsors had argued against the appeal, contending that ESDC fast-tracked its approval of the 2009 schedule concessions demanded by Forest City in order to allow FCRC to meet a deadline necessary for its arena bonds to qualify as tax-exempt. “ESDC’s actions saved the developer hundreds of millions in interest payments,” said Michelle de la Uz, Executive Director of the Fifth Avenue Committee, “but at the cost of thousands of units of affordable housing being delayed for decades. The Appellate Division ruling gives the Governor an opportunity to put the project’s public benefits back on the schedule promised.”

The Appellate Division rejected arguments by ESDC and Forest City that the impacts of 25 years of construction to surrounding neighborhoods were likely to be less severe than if Atlantic Yards were completed in 10 years, writing that such a conclusion “is not based on any technical studies of the environmental impacts of protracted construction. It is supported by the mere assertion that the build-out will result in prolonged but less "intense" construction and that most environmental impacts are driven by intensity rather than duration.” Significantly, the Appellate Division noted that ESDC “failed to consider an alternative scenario in which years go by before any Phase II construction is commenced — a scenario in which area residents must tolerate vacant lots, above-ground arena parking, and Phase II construction staging for decades.”

“In the two years since this suit was filed, nearby communities have had a ringside view of continued violations of Atlantic Yards’ stated commitments on air quality, noise and truck safety,” said Danae Oratowski, Chair of the Prospect Heights Neighborhood Development Council. “Less than six months before Barclays Center opens, we have yet to see the developer’s plans for parking and traffic management, or the City’s plans for crowd control and security. Today’s ruling should be a wake-up call for Mayor Bloomberg to engage the community and work together both to limit the impacts of continued construction, as well as to reduce the effect of the operation of an arena amid historic residential neighborhoods.”

“ESDC not only has allowed Forest City Ratner to steamroll local residents and their elected representatives, but has also played a role in violating State law to the developer’s advantage,” said Howard Kolins, President of the Boerum Hill Association. “Taken together with recent revelations of Forest City’s connection to political corruption cases in Brooklyn and Yonkers, today’s ruling shows the need to reform oversight of Atlantic Yards is more urgent than ever. The New York State Assembly has already passed legislation requiring ESDC to create a subsidiary to oversee the project. We now need swift action on the bill by the State Senate, and a commitment by Governor Cuomo to ensure Atlantic Yards is accountable to the public.”

April 1, 2012

More on Yonkers trial: Senator Libous denies allegations; an observer of the U.S. Attorney calls office "quite selective"

Atlantic Yards Report

During the recent corruption trial involving former Yonkers Council Member Sandy Annabi and her political mentor, Zehy Jereis, key prosecution witness Anthony Mangone, originally charged in the case but testifying in the hope of a reduced sentence, pointed the finger at powerful state Senator Tom Libous, a Binghamton Republican who was close to then-Senator Nick Spano, a Yonkers powerbroker who once employed Mangone and Jereis.

Mangone testified that, at Libous's request, his former law firm had hired Libous’s son Matthew at an inflated salary, and were directed to bill a questionable consulting company to help pay him. No clarifying details emerged, and Senator Libous initially wouldn’t comment, citing the ongoing trial.

That sounded a bit odd, given that the allegations were merely mentioned in the trial, not the subject of it. Yesterday, however, Libous firmly denied the account and any wrongdoing, according to Gannett’s Press & Sun-Bulletin. “I made no promises and nothing transpired between me or my office and the firm,” he said, pointing to Mangone's record as an admitted liar.

Bharara's record, and a question of selective prosecution

Meanwhile, the Journal News, in Annabi verdict is latest win for U.S. attorney, toted up U.S. Attorney Preet Bharara's record in pursuing public corruption:

Spano pleaded guilty on tax charges, albeit lesser charges than it was believed prosecutors once pursued

Vincent Leibell, Putnam County Republican state senator, pleaded guilty to obstruction of justice and tax-evasion charges

Brooklyn state Sen. Carl Kruger, a Democrat, and lobbyist Richard Lipsky pleaded guilty to a bribery and money-laundering scheme

Brooklyn Assemblyman William Boyland, a Democrat, was acquitted of corruption, but since has been indicted on new bribery charges, this time based on wiretaps

angone pleaded guilty

The article states:

Veteran trial attorney Murray Richman, who represented Annabi after she was first indicted, also questioned whether federal prosecutors were sometimes drawn to cases for the splashy headlines rather than digging deeper into larger public corruption.
“They go for the hangers,” said Richman, referring to a term used in billiards whereby players target balls that are perched closest to the holes and thereby are the easiest to sink.
“There’s no question that the U.S. Attorney’s Office is quite selective in the cases they bring,” he said. “They follow the evidence as they perceive it, but they pick on a particular bone and they stay at the same bone and don’t put a wide enough net out there.”

If the office is "quite selective," does that mean certain developers have gotten a pass? (See NoLandGrab's April 1 post.)

March 28, 2012

Jury to begin fourth day of deliberations in Yonkers trial

Atlantic Yards Report

After three days--not quite full days, since yesterday ended at 2:30 pm--a federal jury is still weighing corruption charges against former Yonkers City Council Member Sandy Annabi and her political mentor, Zehy Jereis.

As noted by the Journal News, the jury yesterday "asked today for the testimony of Jereis and former co-defendant Anthony Mangone, who claimed to have passed along a $20,000 bribe to Jereis in 2006 to influence Annabi's vote on the Longfellow housing project in her district."

There was no such claimed bribe regarding Forest City Ratner's Ridge Hill project, but prosecutors argued that the stream of payments from Jereis over seven years induced Annabi to vote as he wished. Defense attorneys pointed to the absence of any agreement to do so, and argued that Annabi changed her vote because of concessions.

On Monday, Hezi Aris of the Yonkers Tribune described what could be gleaned by courtroom observers:

Shouting matches that seemed to give rise from passionate retelling of events and diminution of opposite minded juror's perspectives espoused broke the decibel level often times in the late morning into the mid afternoon, subsiding after 3:00 p.m., or so. While the expressions were loud, they were not discernible. No inference could be deduced.

As I wrote, there was a Rashomon-like aspect to the case, with the Jereis's gifts to Annabi portrayed as evidence of infatuation and evidence of influence.

March 11, 2012

Crain's New York Business columnist (and former editor and Atlantic Yards cheerleader) Greg David implicitly criticizes his own publication and nearly all the New York press by pointing to the light coverage of the Yonkers corruption trial.

In Forest City in the woods in Yonkers: Developer's reputation takes a hit in Westchester scandal, David writes:

One of the most eye-opening exposés of political corruption in New York is getting very little attention—and at least one local player, Forest City Ratner, can only be relieved about that because the developer's reputation is taking a big hit.
The revelations are coming in U.S. District Court in Manhattan, where Sandy Annabi, a Yonkers city councilwoman, and Zehy Jereis, a political operative and Forest City consultant, are on trial for bribery, extortion and conspiracy. The charges say that Mr. Jereis bribed Ms. Annabi, his cousin, to change her vote and swing the council in favor of Forest City's $842 million Ridge Hill development in that city. Only the Journal News of Westchester has covered the case in detail.

David notes the defendants' claims, as well as the testimony by key witness Anthony Mangone, who has "shone a spotlight on two powerful Republicans," former Sen. Nick Spano, who was part of "a vote-fraud scheme more than a decade ago" and state Sen. Tom Libous, who got Mangone's law firm to hire his won.

March 6, 2012

Witness: Forest City Ratner's consulting contract with Jereis was under discussion right around time of Annabi vote, not a month or two later, as developer's reps testified

Atlantic Yards Report

Might someone have perjured himself while testifying in Federal court last week?

Did Forest City Ratner really wait two months after Yonkers City Council member Sandy Annabi voted to green-light the developer's Ridge Hill project to send Zehy Jereis, who helped wangle Annabi's vote, a consulting contract for an essentially no-show job?

Testimony in the federal corruption trial yesterday suggested an alternative sequence, in which the developer's negotiations with Jereis occurred far closer to Annabi's vote.

February 28, 2012

Forest City's Bender, Cantone testify in Ridge Hill trial; no quid pro quo in Jereis hiring, but they strung him along until Annabi voted; developer nearly desperate, ordered Spano to get his brother's help

Atlantic Yards Report

Today was no red-letter day for developer Forest City Ratner. Though not charged in the Yonkers corruption case, two key Forest City executives involved in the $650 million Ridge Hill project--Scott Cantone and Bruce Bender--took the stand and had to explain the company's curious and even desperate behavior in ensuring the project's approval.

Surely the federal jury must have wondered why exactly the developer--the greatest beneficiary of the alleged bribes paid by defendant Zehy Jereis, a former Yonkers Republican chairman, to defendant Sandy Annabi, a former Yonkers Council Member--remains unscathed.

After all, they were concerned about Jereis's persistent requests for a consulting gig, which began before Annabi's vote, so they strung him along, and finally signed him up a few months after Annabi changed her vote in mid-2006 to green-light Ridge Hill.

Defense attorneys did get the Forest City government relations executives to acknowledge that Jereis never requested a quid pro quo. And the execs acknowledged that Annabi never knew anything about Jereis's requests. Nor did they know Jereis had funneled money to her.

What Norman Oder means is that they claimed, under oath no less, that they didn't know Jereis funneled money to Annabi.

And prosecutors, gingerly managing their not-quite-squeaky-clean witnesses, got Bender and Cantone to affirm that no, they would never have hired Jereis for what was essentially a no-show job had they known he had been paying Annabi's bills. (Then again, Cantone testified last week that they wouldn't have hired Jereis if he hadn't helped get Annabi's vote.)

So they wouldn't have hired Jereis if he was bribing Annabi to support their project, but they also wouldn't have hired him if he didn't get her support for their project. Uh huh.

Ultimately, the testimony illuminated the urgent, nearly desperate posture of Forest City, which had committed at least $70 million on Ridge Hill, found factionalized Yonkers politics "crazy," found a unique situation given that Annabi wouldn't even meet with them, and didn't want to see their investment go sour.

After lobbyist Mike Spano, who's now the mayor of Yonkers, told Bender that he and others had been unable to budge Annabi, Bender replied pungently in an email: "No fucking around. Get Sandy on board. Tell your brother we need help now."

But don't bribe her [wink, wink], or we won't pay you for a no-show job.

The developer of the Ridge Hill project in Yonkers would not have hired political operative Zehy Jereis as a consultant if it was known he had a financial relationship with Councilwoman Sandy Annabi, an executive of the developer, Forest City Ratner.

But during testimony today at the federal corruption trial of Annabi and Jereis, executive Scott Cantone also insisted that there was never any quid pro quo between hiring Jereis and getting Annabi to end her opposition to Ridge Hill and cast the deciding vote for it in 2006.

February 24, 2012

Official: Annabi meeting led to job

The Journal News
by Jonathan Bandler

The meeting Jereis arranged got Annabi to switch her vote and eventually led the company to give Jereis a $60,000 consulting contract, a Forest City Ratner official testified Thursday in the federal corruption trial of Annabi and Jereis.

Scott Cantone, senior vice president for government and public relations, said officials were worried about how hiring Jereis would look so soon after the deciding vote and were concerned about what he could actually do for them.

But still they gave him the job, which, as it turned out, he was not very proficient. Jereis didn’t provide any good leads for new retail development and only filed the reports they required of him months later after it was publicly revealed he was under investigation, Cantone said.

Assistant U.S. Attorney Jason Halperin asked the executive what the company had gotten from Jereis.

An executive for one of New York City’s top developers testified yesterday that the firm handed a Yonkers political crony what amounted to a $5,000-a-month no-show job.

Some people might call that a "$5,000-a-month bribe."

Forest City Ratner – whose Big Apple projects include Brooklyn’s controversial Atlantic Yards development – hasn’t been charged with any wrongdoing but is featured in the fed’s ongoing Yonkers corruption case.

Scott Cantone, FCR’s senior VP for government affairs, testified in Manhattan federal court that the firm hired then-Yonkers Republican Party chairman Zehy Jereis as a “consultant” in 2006 because Jereis was the only one who could swing a key vote their way to push through a stalled $650 million mixed-use development called “Ridge Hill.”

Yesterday, in a Lower Manhattan federal courtroom, developer Forest City Ratner was for the first time forced to publicly explain its dubious role in the machinations that provoked the ongoing corruption trial centered around Yonkers.

Forest City has not been charged, but the developer was arguably a bigger beneficiary than the two defendants: ex-Council Member Sandy Annabi, charged with taking bribes to approve two projects, one of them FCR's Ridge Hill, or her distant cousin Zehy Jereis, charged with funneling her some $174,000 in cash and gifts, essentially keeping her on retainer.

Forest City hired Jereis in 2006 for a virtual no-show job not long after Annabi had switched her stance to approve Ridge Hill, an 81-acre, $650 million development with 1.3 million square feet of retail, plus residential and office space.

Jereis, Annabi's political mentor, after organizing a meetings between her and the developer and then getting her on board, then pestered Forest City Ratner for a job.

Yes, it "was certainly a concern" for him that Annabi might not change her vote in the absence of an immediate job for Jereis, Ratner executive Scott Cantone testified yesterday.

At the end of the day's questioning, Assistant U.S. Attorney Perry Carbone asked a pointed question: "If Zehy Jereis had not produced Sandy Annabi's vote, would he have been hired by Forest City Ratner?"

"It's hard to say, but probably not," responded Cantone, Senior VP for Government and Political Affairs, in the matter-of-fact tones that marked his testimony.

February 22, 2012

FCR's Bender mentioned in first day of Ridge Hill trial testimony: he was at two key meetings regarding defendant Annabi's changed vote

Atlantic Yards Report

Former Yonkers Council Member John Murtagh, testifying yesterday in the federal corruption trial involving Forest City Ratner's Ridge Hill project, described the presence of (recently departed) Forest City Ratner executive Bruce Bender at a couple of key meetings before then-Council Member Sandy Annabi, a defendant in the trial, changed her vote to approve the project.
...

The first Bender meeting

According to the report, Murtagh described a May 18, 2006, meeting at Westchester Country Club with Annabi, Council Member Dee Barbato, Forest City Ratner's Bender, and FCR lobbyist Albert Pirro:

“They weren’t conceding any of our positions, what we needed,” Murtagh said. “It kind of went nowhere.”

In the parking lot afterward, he said, Annabi told him and Barbato that if they stuck together they could get much more from the developer.

But a few weeks later Annabi had changed her mind in exchange for an extra $10 million the developer would give the city.

Lobbyist Pirro, he said, had previously made a similar proposal, which he thought inadequate. The "extra $10 million," of course, was Annabi's public rationale, while prosecutors say she was taking money from her distant cousin, Yonkers Republican Chair Zehy Jereis, who later got a no-show job from Forest City.

The second Bender meeting

On July 11, 2006, shortly before Annabi formally voted for the project, Murtagh was called by defendant Jereis to a meeting:

He met Jereis and Bender at a Starbucks on Central Avenue, and Jereis, who did most of the talking, told him Ridge Hill was going to pass and that it would look good politically for Murtagh to vote for it as well.

“I kind of figured it looked better for Sandy if two people changed their vote,” Murtagh told Assistant U.S. Attorney Jason Halperin. “But to suddenly change my vote, far from being politically savvy, it would have been political suicide.”

The summer of 2006 was a busy time for Yonkers Councilwoman Sandy Annabi.

She ended more than a year of opposition by voting in favor of the controversial Ridge Hill development. And she went on a bit of a spending spree, paying $7,100 for a Rolex watch and diamond necklace and more than $3,800 to fly business class to Jordan, witnesses testified Tuesday at the corruption trial of Annabi and Zehy Jereis.

Prosecutors contend the money came from a $20,000 bribe Annabi received to support another proposed development.

Despite numerous reservations about the wisdom of moving the Department of Public Works City Yard, the New Rochelle City Council voted 6-1 last night to approve borrowing $600,000 to finance the design phase of the proposed City Yard on Beechwood Avenue. The City will issue bonds to raise the money.
...

Many New Rochelle residents have expressed skepticism over what they perceive to be self-serving studies intended to justify decisions made by city officials who want to move the yard at taxpayer expense to benefit Forest City Ratner. The Ratner family has donated over $10,000 to Mayor Noam Bramson.

February 17, 2012

Ridge Hill trial opens, but mystery persists regarding Forest City Ratner's role in compensating accused consultant who paid accused Council Member

Atlantic Yards Report

According to the opening statements yesterday by defense lawyers in a federal corruption trial, there are explanations for why Yonkers Council Member Sandy Annabi was given money by her distant cousin, Yonkers Republican Party Chair Zehy Jereis, and why she changed her vote to enable Forest City Ratner's Ridge Hill development.

Jereis was infatuated with her, and Annabi believed that changes in the Ridge Hill project--retail, residential, and more--finally made it worthwhile.

The question is whether those arguments--presaged in pretrial papers--is whether they add up. After all, Annabi has denied the romantic relationship purported (or perhaps merely pursued) by Jereis. And, as previously reported, those changes in Ridge Hill were small beer.

Defense lawyers went after the go-between regarding the second project, Longfellow, Anthony Mangone, who already pleaded guilty to funneling cash to Jereis to pay off Annabi.

The question is whether and how they will go after Forest City, three of whose former staffers are expected to be mentioned or to testify in the trial, which is expected to resume Tuesday.

“Jereis made these secret payments to Annabi to influence and control her official conduct, so that he could in turn sell his control over Annabi to the highest bidder,” said the prosecutor, Jason P. W. Halperin.

Mr. Jereis repeatedly asked representatives of Forest City Ratner to hire him as a consultant, the prosecutor added, and Forest City Ratner ultimately gave him a $60,000 consulting contract after Ms. Annabi voted in favor of the Ridge Hill project.

While the Feds says Forest City Ratner company has not broken the law, they say the lobbyists hired to get government favors have. If you believe that Ratner who won $750 million for his Atlantic Terminal Nets Stadium project in Brooklyn did not know what his lobbyists were doing you should apply for a job as a reporter in New York.

Deep Throat Said Follow the Money, So Why is Nobody Following Where Ratner's Lobbyist Got Their Bribe $$$ . . . Maybe They Donated It?

On Tuesday the state and Forest City Ratner lamely argued their appeal in front of a NY State Appellate Court panel which was not buying their contorted arguments. They were appealing the case the community won in which it was ruled that they are required to do a new environmental review for the bulk of the Atlantic Yards project.

February 15, 2012

ESDC asks appellate court to deny full study of 25-year Atlantic Yards impacts (and alternatives); some judges skeptical, others wonder what harm it would do

Atlantic Yards Report

Norman Oder reports on yesterday's Atlantic Yards court hearing.

It was a somewhat uphill battle yesterday for the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR), asking a state appellate court panel to overturn a lower court’s order that the agency study the impact of a 25-year Atlantic Yards buildout, solicit public comment, and conduct a public hearing.

A couple of the five judges were clearly skeptical of the state, with one citing the ESDC's "obstinate adherence" to the long-professed ten-year buildout.

Others, taking in the objections from the defendants, questioned whether a Supplemental Environmental Impact Statement (SEIS)--which would analyze those extended impacts and even consider alternatives to Phase 2, since as revising the project to diminish impacts or welcoming new developers--would really cause any harm.

Then again, questions from the bench do not necessarily indicate how a court will rule after analyzing the legal papers.

Atlantic Yards was approved in 2006, with a ten-year buildout, then revised in 2009, as Forest City reopened settled deals with the ESDC (regarding the timing of condemnations) and the Metropolitan Transportation Authority (regarding the payment of railyard development rights and the configuration of a replacement railyard), in order to save money.

As part of the 2009 approval, as the defendants stressed, the state did analyze the impacts of 15-year buildout (in the 2009 Technical Memorandum). In response to a lower court ruling by Supreme Court Justice Marcy Friedman, the state produced a document (the 2010 Technical Analysis) arguing that a 25-year buildout would not create any impacts not previously disclosed.

But that document was inadequate, argued the lawyers for the petitioners, community coalitions led by Develop Don’t Destroy Brooklyn and BrooklynSpeaks.

At the heart of the 35-minute argument before the Appellate Division, First Department, in Manhattan was whether an intense buildout of the 17-building project over a decade would be worse than an extended, if less intense, buildout over 25 years. The state says yes, the petitioners say no.

The legal dispute does not affect the building of the arena, nor the towers around it, but does address plans for and impacts of Phase Two of the project: the eleven towers east of Sixth Avenue, including those to be built on a platform over the Vanderbilt Yard.

A decision is expected in about two months. An appeal is not automatic unless two of the five justices dissent.

The Bergen Record's John Brennan stands out among mainstream media reporters for his dedication in covering the Atlantic Yards story.

Atlantic Yards developer Forest City Ratner was in court in Manhattan on Tuesday – Valentine’s Day – arguing against critics’ claims that they have a sweetheart deal with New York State to develop the project on any timetable they choose.

First things first: This last remaining lawsuit, eight years into the saga, will not impact construction of the Nets’ $1 billion Barclays Center arena near downtown Brooklyn nor its scheduled opening in September. That is the first of more than a dozen buildings scheduled to go up – eventually.

And that’s where this legal action comes in: If the project’s original 10-year timetable is now more realistically a 25-year one for full buildout, is a Supplemental Environmental Impact statement required?

Even the lawyers don’t know when Bruce Ratner’s Atlantic Yards project will be completed — if it will be completed at all.

That bombshell — and the equally explosive prospect of a massive parking lot just south of Atlantic Avenue taking up promised park space for more than a decade — were the highlights of yesterday’s appeals court hearing to consider whether the 16-skyscraper arena, commercial and residential project is so delayed that Mr. Ratner must perform a new environmental impact statement to analyze the effect of the longer buildout.
...

“This is the 13th and 14th litigation about the Atlantic Yards project,” [Empire State Development Corporation attorney Philip Karmel] said. “If we had a supplementary [environmental impact statement], there’d be yet another litigation.”

NoLandGrab: Well, if it was of the same quality as its predecessor, yes there would.

New twists in Ridge Hill corruption trial: Forest City consultant Pirro said to claim job for defendant Jereis would get defendant Annabi to flip her City Council vote

Atlantic Yards Report

In pre-trial decisions yesterday by U.S. District Judge Colleen McMahon, the contours of the Yonkers corruption trial, which begins today, became more clear, with confirmation that Forest City Ratner officials would indeed testify and new evidence of a central role by a Forest City Ratner consultant.

During a meeting with one council member, Mr. Pirro turned the conversation to how others on the Council might vote, according to a prosecution account described in a judge’s ruling released late Tuesday; when it came to assessing one member, Sandy Annabi, he showed no hesitation, the account continued.

He was confident, according to the same account, that he could win her vote by giving a job to one of her friends, Zehy Jereis, then the chairman of the Yonkers Republican Party.

“I am not worried about Sandy Annabi,” Mr. Pirro was quoted as saying to Dennis Robertson, then a councilman. “We will just give Zehy a consulting contract, and we will get her vote.”

Federal charges indicate that's what happened, that Jereis got a no-show job from Forest City after Annabi changed her vote. The Times reports:

Mr. Pirro declined to comment. Forest City Ratner said it “had no knowledge of what Mr. Pirro may have said.” The company said it had cooperated fully with the inquiry and “at no point was there any indication or suggestion that they behaved in a way that was inappropriate.”

Prosecutors may not have suggested that Forest City behaved illegally, but the developer has never explained or justified the no-show job. Doesn't that qualify as inappropriate or unethical?

It was 2005, and Albert J. Pirro Jr., a noted man of influence in Westchester County, was working as a consultant for a major real estate developer that was seeking approval from the Yonkers City Council for a large luxury mixed-use development.

His wife, Jeanine F. Pirro, was soon to begin a Senate campaign that she would later abandon; Mr. Pirro was several years removed from an 11-month stint in federal prison in a tax case, and he had been retained by the developer, Forest City Ratner, to help it obtain enough support from the City Council to win approval for the project, Ridge Hill.

February 14, 2012

Appeals court argument Tuesday: should state have systematically examined impact of 25-year Atlantic Yards buildout? Is another public hearing needed?

Atlantic Yards Report

Norman Oder previews today's Atlantic Yards court hearing...

In an argument [this] afternoon lasting no longer than 30 minutes, lawyers for the Empire State Development Corporation (ESDC) and developer Forest City Ratner will argue to a state appellate court that a trial judge overstepped her boundaries in ordering the agency to systematically examine the environmental impacts of a 25-year project and to reassess the second phase of Atlantic Yards.

In turn, lawyers for two community coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks, will argue that the decision by Justice Marcy Friedman--which came after a skein of rulings--should be upheld, and a public hearing must be held. (Legal papers are here.)

The legal dispute does not affect the building of the arena, nor the towers around it, but does address plans for and impacts of Phase Two of the project: the eleven towers east of Sixth Avenue, including those to be built on a platform over the Vanderbilt Yard.

On a broader note, the case, addresses whether the state agency essentially cheated to ensure that Atlantic Yards would move forward--and whether judges, who generally defer to state agencies if they display a mere "rational" basis for their decisions, are willing to more aggressively protect the public interest.

But the trial is tantalizing for where its tentacles extend — linking political corruption in Westchester to that in Brooklyn, and touching on the curious fashion in which real estate developers pursue their chosen game.

On the eve of the trial's start The Times's columnist Michael Powell's second column on the Ratner ties to the trial pulls no punches. Powell is the first mainstream journalist, as far as we can tell, to pull the mask off Bruce Ratner and his "left-liberal" abettors such as former public advocate Betsy Gotbaum....

NoLandGrab: Given the machinations of Gotbaum and her successor BilldeBlasio, perhaps the office's name should be changed from NYC Public Advocate to Bruce Ratner's Personal Advocate.

February 13, 2012

Tracking the Tentacles of Corruption

The New York Times
by Michael Powell

The Times's "Gotham" columnist takes another must-read look at the smoke rising around Bruce Ratner. Here's some red meat for NoLandGrab readers.

All of which brings us to the role of the politically wired developer, whose projects are catnip to politicians. No prosecutor has implied that Mr. Ratner or his aides played a corrupt role. In Brooklyn, where he has a 22-acre development known as the Atlantic Yards, he was mentioned in the corruption case last year that toppled a Brooklyn Democratic power, State Senator Carl Kruger. Prosecutors called Mr. Ratner “Developer No. 1.” In Yonkers, he appears in Ms. Annabi’s indictment as “Developer No. 2.”

After I wrote last month of Mr. Ratner’s entanglements, several left-liberal sorts, not least former Public Advocate Betsy Gotbaum, wrote to object that I had besmirched a fine fellow. The developer is a patron of liberal causes. He has set aside a significant number of apartments in his Atlantic Yards project for working-class tenants.

Much of this is true, as is this: Mr. Ratner wrangled $726 million in subsidies and benefits from the city and state, and he fights for even more by the week. (He was the developer of The New York Times building.) His willingness to tuck affordable apartments into his gleaming towers is perhaps a reasonable political tradeoff rather than a testament to his character.

Mr. Ratner relies, too, on phalanxes of former top officials to make his case. The less polite might call them fixers. So he hired Bruce Bender, a former top City Council aide and south Brooklyn Democratic power, as his senior vice president, and put Scott Cantone, a former Giuliani aide, in another post.

In Yonkers, which now resembles nothing so much as “Chinatown” by the Hudson, word is that at least one of Mr. Ratner’s aides could take the witness stand and testify about events that could prove deeply embarrassing.

Valentine's Day Oral Argument in Ratner/NY State Appeal Of Ruling Requiring New Atlantic Yards Environmental Review

NEW YORK, NY—What better day than Valentine's to further discuss, in court, the sweetness of Bruce Ratner's sweetheart deal?

On Tuesday, February 14, oral argument will be heard in State Appeals court on an appeal filed by Forest City Ratner and the Empire State Development Corporation. The partners in the Atlantic Yards project are attempting to overturn a July 2011 ruling, in favor of a community coalition led by Develop Don't Destroy Brooklyn and BrooklynSpeaks, requiring a new Environmental Impact Statement for the bulk of the Brooklyn development project, which has been floundering over the two years since groundbreaking took place for the arena portion of the project.

Should the Ratner and ESDC appeal fail, the state agency and Forest City Ratner will have to issue a Supplemental Environmental Impact Statement, hold a public hearing on that review, and vote to approve or disapprove the new review. The fundamental issue in the ruling under appeal is whether a 25 year (or more) build out of the project will have new and different impacts than the now discredited claim by the developer and the state that the entire project (16 towers and the arena) will be built by 2019. (Most of the project site is expected to be parking lots and vacant lots for up to a decade.)

Details below:

Tuesday, February 14th at 2pm** Appellate Division of New York State Supreme Court 27 Madison Avenue in Manhattan (between 25th and 26th Street)
(**The day's argument calendar begins at 2pm. This appeal argument is 8th on the calendar. So we can only estimate when the argument will take place. It is likely to start between 3:30 and 4, and not too likely before 3:30. If you plan on attending we suggest arriving shortly after 3pm.)

In early December Forest City Ratner and the Empire State Development Corporation filed legal papers appealing last July's ruling in the community's favor that the state agency acted irrationally, and misled the court and public, when it approved the modified project plan for Atlantic Yards. The court ordered the agency to undertake a supplemental environmental review of the project.

While the arena construction moves ahead for a September 2012 opening, the rest of the project is a huge question mark, which requires some semblance of a meaningful environmental review, something it has yet to receive. This review must include a public hearing.

Should Forest City and ESDC prevail in their appeal, the supplemental review and public hearing will not occur and the project will, yet again, evade a proper review of the impact it is having and is going to have on Brooklyn.

As long as Forest City Ratner continues to fail to deliver on its promises while maintaining its stranglehold on 22 acres in the heart of Brooklyn, the community must demand its opportunity to have a say in what happens to our neighborhoods; upholding this ruling is one important step towards that goal.

February 11, 2012

When ACORN endorsed Republican Spano in 2006, was Forest City Ratner a factor? Worth pondering, though plea deal suggests no ties to Ridge Hill

Atlantic Yards

The byzantine world of Yonkers politics, revealed in part by a federal investigation into corruption, has shed light on the relationship between lobbyist/elected official Mike Spano and developer Forest City Ratner.

With the guilty plea by his brother Nick Spano to tax evasion just before the larger corruption trial involving Forest City's Ridge Hill project, there was reason to wonder about connections to Ridge Hill, but the actual plea details released yesterday cast some doubt.

Yes, Nick Spano had a close relationship with defendant Zehy Jereis--who got a no-show job from FCR after allegedly bribing Council Member Sandy Annabi to change her vote on Ridge Hill. Did Nick Spano have any connection to Forest City and Ridge Hill? Unclear, and unclear.

Two of the three Assistant U.S. Attorneys prosecuting the corruption case signed Spano's plea agreement. However, Journal News columnist Phil Reisman, in a column today headlined Sole Spano count seems like swing, miss, thinks that a one-count tax charge was not enough to take out "the political fixer and the big macher of Yonkers," who will still keep his "lucrative lobbying business":

They went after a whale, and it seems all they harpooned was a minnow. It’s hardly a stretch to think that the Ahab-like mission was to somehow tie Spano to the bribery scandal surrounding the $630 million Ridge Hill project in Yonkers. But failing in that, the U.S. Attorney’s Office did what all investigators do when they can’t get the solid goods on somebody: They nail them on taxes.
What’s more, they issued Spano’s crime sheet less than a week before the Ridge Hill trial is scheduled to begin. It may only be a coincidence, but the timing suggests guilt by association.

Bruce Bender, a key executive vice president for Forest City Ratner — the developer that created the $630 million Ridge Hill retail colossus in Yonkers — has resigned from the firm. Along with a partner, Bender is starting a political consulting firm.

News of his departure was first reported on Liz Benjamin’s Capital Tonight blog.

Curiously, it comes a week before the commencement of a federal corruption trial starring former City Councilwoman Sandy Annabi, who was charged in 2010 with selling her vote for the Ridge Hill project, as well as for another lower-profile project in Yonkers, in exchange for cash bribes.

Bender played a major role in squiring the controversial Ridge Hill deal through the bureaucratic maze of permits and approvals.

Like me, Reisman thought that it was curious for Forest City executive Bruce Bender to leave his job just before the federal corruption trial involving the firm's Ridge Hill project, since Bender played a key role in getting the project going.

Unsatisfying answers

Reisman writes:

Even though no one at Forest City has ever been implicated in the bribery scandal, questions about what Bender (and possibly others) knew about the scheme have lingered ever since U.S. Attorney Preet Bharara announced the indictments two years ago.

Will Bender be called to testify?

I put the question to Bender through a spokesman, George Artz, but did not receive a response Wednesday.

...Asked if the upcoming Ridge Hill trial had anything to do with his exit, Artz said it did not.

“He’s long wanted to do it,” Artz said. “There is always something happening every moment of time — and 12 years is a long time for anyone to be in one place.”

Forest City issued a terse kiss-off Wednesday: “Bruce Bender has decided to leave Forest City Ratner Companies to pursue other opportunities. Everyone at FCRC wishes him the best.”

Reasons for doubt

OK, we have:

no answer regarding whether he'll testify

neither Forest City nor Bender's new firm coordinating the news (I contacted Forest City two nights ago but never heard back)

We admit we don't know the reason for Bender's departure. All we do know is that February 14th begins a federal corruption trial involving Ratner's Ridge Hill project in Yonkers in which Bruce Bender is the unnamed and unindicted co-conspirator in a case where the briber and the bribee were indicted while the beneficiary of the bribe, Bruce Bender's firm, wasn't.

February 1, 2012

February 14: a day of reckoning for Forest City Ratner? Cases involving Atlantic Yards timetable and Ridge Hill corruption charges go to court

Atlantic Yards Report

Tuesday, February 14, may be a day of reckoning for developer Forest City Ratner, as two key court cases proceed in Manhattan.

Sometime after 2 pm, there will be oral argument in the appeal filed by FCR and Empire State Development in the case challenging the state's finding that there was no need for a Supplemental Environmental Impact Statement (SEIS) to analyze the impacts of a 25-year buildout.

In a victory for community petitioners, a judge ruled that such an SEIS was needed.

The case will be heard in the Appellate Division of New York State Supreme Court, 27 Madison Avenue. I've already written about the first two legal exchanges: the appeal brief from ESDC/FCR and the reply from the petitioners. The appellants get the last word, so I will write shortly about their reply.

The Ridge Hill case in Yonkers

On February 14, jury selection begins in federal court regarding the Ridge Hill corruption case, which touches on Forest City Ratner, though the developer was not charged. The case, which could take a month to try, will be heard by U.S. District Judge Colleen McMahon in courtroom 14C of the federal courthouse at 500 Pearl Street.
...

January 25, 2012

NY State Appeal of Atlantic Yards Sweetheart Deal Ruling in Court on Valentine's Day

Develop Don't Destroy Brooklyn

Happy Valentine's day courtesy of the Empire State Development Corporation and Forest City Ratner.

Oral argument on NY State's and the developer's appeal of the ruling that went against them in DDDB et al. v. ESDC et al. has been scheduled for....Tuesday, February 14th at 2pm in the Appellate Division of New York State Supreme Court (27 Madison Avenue in Manhattan.)

What better day to further discuss, in court, the sweetness of Bruce Ratner's sweetheart deal.

January 20, 2012

Responding in timetable case appeal, community coalitions charge ESDC with "fabrication," "sham," and "cover-up" for not analyzing impact of 25-year buildout; argument likely in February

Atlantic Yards Report

The two community coalitions challenging the state's failure to study the effects of a 25-year project buildout have filed a joint brief responding to the dual filings by the Empire State Development Corporation (ESDC) and Forest City Ratner that appeal a lower court's decision finding the ESDC's actions arbitrary and capricious for failing to order a Supplementary Environmental Impact Statement (SEIS).

The legal dispute does not affect the building of the arena, nor the towers around it, but does address plans for and impacts of Phase Two of the project: the eleven towers east of Sixth Avenue, including those to be built on a platform over the Vanderbilt Yard.

On a broader note, the case, which should be heard in a state appellate court in Manhattan in February, addresses whether the state agency essentially cheated to ensure that Atlantic Yards would move forward.

As the plaintiffs--coalitions led by Develop Don't Destroy Brooklyn and BrooklynSpeaks--argue, had the ESDC been forced to conduct an SEIS, the agency, which approved a new Modified General Project Plan in September 2009, would have had to delay approval until 2010.

That would have forced Forest City Ratner to miss a crucial end-of-2009 deadline to get federally tax-exempt arena bonds sold. And that would have cost the developer at least $100 million more.

January 18, 2012

A Call For Governor to Step In and End 'Cycle of Litigation' at Atlantic Yards

Community group wants renewed focus on promised affordable housing at the site.

Fort Greene-Clinton Hill Patch
by Jamie Schuh

Amidst a back-and-forth legal war over the environmental effects of the timeline of Atlantic Yards development, at least one community group is now asking for Gov. Andrew Cuomo to step in and make affordable housing at the site a priority.

“Brooklyn needs Governor Cuomo to step in to end the cycle of litigation, and get this project to deliver on its promises,” said Deb Howard, executive director of the Pratt Area Community Council. “It’s time to move beyond the past failings of the Empire State Development Corporation, and focus on building the affordable housing and providing the jobs the community so desperately needs—now, not in 25 years.”

The call to Albany coincides with ESDC and Forest City Ratner's recent appeal of a July 2011 court decision ordering further environmental review of the Atlantic Yards project, and the subsequent legal response taken this weekend by groups like BrooklynSpeaks and Develop Don’t Destroy Brooklyn.

The legal tug of war started in 2009 when the Empire State Development Corp. allowed Forest City Ratner a 15-year extension on the construction timeline at Atlantic Yards. This summer a court ordered an environmental review of the consequences of the prolonged construction timeframe, which ESDC and Forest City Ratner subsequently appealed. This week, several other activist groups — including Develop Don’t Destroy Brooklyn — filed legal documents against that appeal.

But the Pratt Area Community Council wants to bypass the legal jostling by getting Cuomo to coerce a resolution.

January 12, 2012

Norman Oder takes a long look at New York State's briefs on appeal of the Supreme Court ruling that requires the Empire State Development Corporation to undertake a Supplemental Environmental Impact Statement. ESDC argues that the court usurped agency discretion. The ESDC certainly knows a thing or two about usurpation, such as usurping all NYC zoning laws and 22 acres of Brooklyn to construct a money-losing arena and massive parking lots for a politically connected developer.

But we digress. The plaintiffs on the case, which include DDDB, have made clear, and the court agreed, that the ESDC acted arbitrarily and capriciously in its decision making "process."

The state agency, decrying an "unprecedented judicial usurpation of agency discretion," slams state Supreme Court Justice Marcy Friedman for imposing what it says are her views on how to analyze the potential impact of an extended project buildout lasting 25 years, rather than the officially announced ten years.

Similarly, Forest City denounces "an unprecedented expansion and distortion of SEQRA [State Environmental Quality Review Act], and an improper substitution by the court of its judgment for that of ESDC."

Thus, contends the agency, her decision, which required the ESDC to conduct a Supplemental Environmental Impact Statement (SEIS) regarding Phase 2--the eleven towers outside the arena block and Site 5--should be reversed both because judges should defer to agency decisions, as well as "the record here, which makes clear that ESDC took multiple SEQRA 'hard looks' at the impacts of the Project under various construction schedules."

The briefs by ESDC and Forest Citywill get a response from the two coalitions (led by Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council/BrooklynSpeaks) that brought the (now-combined) lawsuit.

December 8, 2011

Queens judge reexamines lawsuit against city over Willets Point

Queens Times Ledger
by Joe Anuta

A State Supreme Court judge reopened a lawsuit Tuesday that could throw a wrench into the $3 billion redevelopment blueprint for Willets Point after the city broke down its original plans into three separate phases.

State Supreme Court Judge Joan Madden originally ruled against a group of property owners who sued the city to stop the project, but she said in her Tuesday ruling that she would reopen the case after the city Economic Development Corp. made changes to its plans for the 62-acre, mixed-use development, which would replace the auto body shops and industrial businesses that currently populate the Iron Triangle.

According to the ruling, the city broke up the proposal into three phases without conducting a separate environmental study and also claimed that it did not need additional ramps on the Van Wyck Expressway to accommodate increased traffic.

In addition, the city earlier claimed that it would not proceed with condemning property in the triangle until the ramps were approved but did so anyway, the ruling said.

“As the city has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment,” Madden said in her statement.

December 6, 2011

Feds open SEC probe into Miami Marlins stadium deal

The U.S. Securities & Exchange Commission has subpoenaed records from Miami-Dade County and Miami over the deal to build a new ballpark for the Marlins.

Miami Herald
by Charles Rabin, Martha Brannigan and Patricia Mazzei

Look who's just catching on!

Federal authorities have opened a wide-ranging investigation into the Miami Marlins’ controversial ballpark deal with Miami-Dade County and the city of Miami, demanding financial information underpinning nearly $500 million in bond sales as well as records of campaign contributions from the Marlins to local and state elected leaders.

In a pair of lengthy letters delivered to government attorneys Thursday, the U.S. Securities & Exchange Commission gave the city and county until Jan. 6 to deliver everything from minutes of meetings between government leaders and Marlins owner Jeffrey Loria and Major League Baseball Commissioner Bud Selig, to records of Marlins finances dating back to 2007.

In the almost-identical subpoenas, the SEC also requested documents concerning stadium parking garages built by Miami. The Miami Herald reported Nov. 22 that city leaders are now complaining they were hoodwinked into likely having to pay an annual $2 million tax bill on the garages.

The financing agreement to build the controversial new stadium in Little Havana left the county and city on the hook for almost 80 percent of the overall $634 million tab, which critics considered a giveaway to the Marlins. The deal was a contributing factor in the recall of Miami-Dade Mayor Carlos Alvarez, who championed it.
...

Neither subpoena said exactly what the SEC was looking for, though federal investigations into municipalities generally focus on whether bond holders were misled about finances while being enticed to purchase the bonds.

Two former SEC attorneys who reviewed the subpoenas for The Herald said government investigators are likely looking at whether the city and county did proper due diligence into the Marlins’ finances, and whether there was any influence peddling to local politicians.

“There’s always the issue of pay-to-play. They want to know whether there were unlawful contributions,” said William Nortman, a Fort Lauderdale attorney and former SEC regional administrator. “Don’t forget, there was a lot of controversy over the building of this in Miami. They are examining how this came to be. They want to know whether inappropriate payments were made.”

December 4, 2011

More from the file in the case challenging economic development grants: the influence of politics, the legacy of AY eminent domain litigation

Atlantic Yards Report

A few more pieces from the file in the case (as I described November 28) unsuccessfully challenging the state's practice of economic development grants as violating the state Constitution's ban on gifts to private undertakings.

The corruption of state politics

From the initial plaintiffs' brief, 9/15/08:

Complaints about state politics being dominated by “Three Men in a Room,” the Governor, Speaker and Majority Leader, are legion. What makes this corrupt regime possible is the flagrant disregard of the Constitution, both in appropriating grants to favored corporations and in allowing those three officials to secretly choose the recipients of the illegal largesse. As pointed out in the complaint, many recipients of grants return the favor by making campaign contributions to influential legislators. This further increases their power over the rank and file legislators who need this money at election time.

From the 8/4/08 complaint:

There are well over 100 grants to chambers of commerce, groups that supposedly espouse the principles of free private enterprise.

On information and belief, recently a candidate for state legislature in Upstate New York approached a chamber of commerce official for support and was told the group could not support him as they were getting state money from the incumbent.

This anecdote illustrates the corrupting influence of corporate welfare in our extraordinarily non-competitive political system.

The influence of eminent domain litigation

The Atlantic Yards eminent domain case, known as Goldstein, played a key role in the 1/10/11 brief from the state as defendant:

B. Appropriations For The Purpose Of Fostering Economic Development Are For A Public Purpose.

This Court has recognized that promotion of economic development is a valid objective of governmental action. The issue has presented itself primarily in cases involving condemnation of real property, where the Court has confirmed that “removal of urban blight” is a “recognized public purpose or ‘use’ ” and therefore “a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain.” Matter of Goldstein v. New York State Urban Dev. Corp.... The determination that economic development in the form of the removal of urban blight is a public purpose sufficient to justify a taking of private property necessarily implies that economic development is a also sufficiently public purpose to justify an expenditure of public funds. Indeed, a “public purpose” requirement supporting a taking of private property should be at least as stringent as a public purpose requirement supporting the expenditure of public funds.

In the Goldstein and Kaur cases, this Court also made clear that the determination of whether a governmental action serves a public purpose is a legislative rather than a judicial task.

Of course, the "legislative" task in the case of Atlantic Yards was determined not by the legislature but by a purportedly (to the defense) independent public benefit corporation, the Empire State Development Corporation.

Some reformers think that the burden should be higher when eminent domain is conducted by such an unelected body, compared to an elected one.

A 5-2 state Court of Appeals decision last week (Bordeleau vs. New York State) upholding state grants for economic development wasn't a surprise, even though the court had to reverse an appellate court that gave the Tea Party-affiliated plaintiffs some measure of hope.

Yes, the state Constitution bans gifts and loans to private entities, but the state has done so for years through intermediary public benefit benefit corporations like the Empire State Development Corporation (ESDC), based on the premise that they are independent. (Of course, the governor controls the ESDC, as we've seen in the Atlantic Yards saga.)

And, judges are reluctant to intervene in such longstanding, however dubious, economic development policy, even if involves the largest state economic development subsidy in history, to upstate chip maker GlobalFoundries, which--no surprise--is already seeking to modify and improve the deal it got.

After all, while the Daily News criticized the court's endorsement of the ESDC's subsidy practices, it has never looked askance at ESDC support for Atlantic Yards. (The New York Times hasn't covered the subsidy case, either in its news pages or editorial pages.)

November 20, 2011

Workers: "Atlantic Yards Scammed Us"

Bay Ridge Journal

According to a South Brooklyn Legal Services press release, a group of Brooklyn workers who joined a job training program as part of the Atlantic Yards development deal have filed a federal lawsuit against Atlantic Yards Development Company LLC, Brooklyn Arena LLC, Brooklyn United for Innovative Local Development (‘BUILD’), Forest City Ratner Companies LLC (‘FCRC’), Bruce Ratner and others.

The lawsuit alleges that the defendants fraudulently induced the plaintiffs into taking part in a fake employment training program.

When developer Bruce Ratner announced Atlantic Yards in December, 2003, neighborhood residents immediately objected that by demolishing residential buildings, the project would evict tenants and drive out homeowners and small businesses.

In a move calculated to subvert protest and conquer local politicians, Atlantic Yards developers entered into a so-called ‘Community Benefits Agreement’ (‘CBA’), promising jobs and other benefits, with a bunch of cardboard "community organizations", including BUILD, created solely for purposes of negotiating the CBA.

Among other things, the CBA promised that Atlantic Yards would create a Pre-Apprenticeship Training Program’ (‘PATP’), in partnership with BUILD, to train community residents for construction jobs at Atlantic Yards.

Plaintiffs joined the PATP in the fall of 2010 -- several even quit their jobs to do so. They were repeatedly assured by the developers that, by completing the program, they would earn membership in construction unions employed at Atlantic Yards.

November 17, 2011

Atlantic Yards Lawsuit Plaintiffs Allege Broken Promises

Here’s a video of the press conference on Tuesday about the lawsuit over Atlantic Yards jobs. The footage, shot by Milica Petrovic, shows some of the plaintiffs saying they were promised union jobs at Atlantic Yards after completing a training program. Maurice Griffen, one of the people suing, has this to say: “They guaranteed me a union card. They said it’s not a question of if we have it, it’s just a question of if you complete the program or not.” Meanwhile, a lawyer from South Brooklyn Legal Services says the suit hinges on “contract law…if a promise is made it has to be kept…these were promises made at the Community Benefits Agreement, they were made at orientation…” Councilwoman Letitia James says the plaintiffs “were had.”

November 16, 2011

Brooklyn Residents File Lawsuit to Recover Unpaid Wages

The Local [Clinton Hill/Fort Greene]
by Chester Soria and Martin Leung

Ironic that The Times, which sent experienced reporter Liz Robbins to cover the Nets' staged event at Borough Hall, sent two interns to cover the press conference about the lawsuit. Let's hope they get better treatment in their training program than the ex-trainees got from Forest City Ratner and BUILD. And frankly, their reporting is better than The Times's usual Atlantic Yards coverage.

[Plaintiffs' attorney Nicole] Salk added that the plaintiffs entered the internship program because they were guaranteed union jobs and that they continued working because they were told they would not receive membership if they stopped.

Marie Louis, BUILD chief operating officer, attended the press conference with other members of the organization to find out who the plaintiffs were. She argued after the press conference that all the plaintiffs signed an agreement that said they would not receive pay or be guaranteed union membership.

“They knew it was an unpaid internship,” Ms. Louis said, adding that the plaintiffs misunderstood the agreement. “We can’t help it if people have an idea in their mind that they laser in on.”

Those lasers, of course, were guided by falsehoods.

The plaintiffs’ attorneys, however, said after the press conference, that a signed agreement does not mean that their clients were not entitled to pay.

“You can’t waive your right to be paid for your labor,” said Molly Thomas-Jensen, a SBLS staff attorney.

Maurice Griffin, 23, of Prospect Heights, was one of the plaintiffs at the conference. Mr. Griffin said that he personally asked James Caldwell, BUILD president and CEO, about union books — membership cards that denote union membership — and that Mr. Caldwell told him he had nothing to worry about. He also said Mr. Caldwell told the class that he himself had seen the union books.

“You can ask all the 36 students,” said Mr. Griffin, “and all 36 will tell you that the said the union books were guaranteed.”

“Their understanding was that upon being admitted (into the unions), which (BUILD instructors) guaranteed they would be when they completed the program, that they would be given a job on the Atlantic Yards construction site,” Matt Brinckerhoff, one of the attorneys representing the plaintiffs, told The Commercial Observer.

Mr. Brinckerhoff added that the training itself was “muddled and haphazard” and taught the participants “various platitudes.”

“I was robbed,” claims plaintiff in lawsuit against BUILD and FCR; defendants deny promising jobs and union cards, setting up contest over credibility; claims over unpaid wages in "sham" training program may be easier to prove

Atlantic Yards Report

To City Council Member Letitia James, the leading political opponent of Atlantic Yards, the federal lawsuit filed yesterday by seven would-be Atlantic Yards workers, who claim they were promised construction jobs and union cards after finishing a highly competitive training program, confirms that the project “was the greatest bait and switch in the history of Brooklyn.”

For the workers-- some of whom quit jobs or declined job offers in expectation of post-training work and union membership--it was simply a chance for justice, after going through the 15-week program sponsored by Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development), where they learned little and were put to work, without pay, on a mostly unsupervised contracting job.

“We were repeatedly reassured on numerous occasions that all we had to do is to complete the program and we would obtain union books and employment,” said Kathleen Noreiga, 58, an electrician (in video below). She made a point of saying she had rallied for the project with BUILD, which, while offering job training and assistance, has regularly brought Atlantic Yards supporters to public hearings and events. (BUILD CEO James Caldwell has regularly praised Atlantic Yards developer Bruce Ratner as "like an angel sent from God.")

Seven of the 36 workers who went through the program, which concluded last December, joined the suit, announced at a press conference yesterday afternoon. (Videos by Jonathan Barkey)

“I was robbed,” asserted Maurice Griffin (in video below), who quit his non-union carpentry job to do the 15-week, Forest City Ratner-funded program that began last August.

“They guaranteed me a union card, They said it’s not a question of whether we have it, but whether you complete the program. And I completed it. I came every time, early. I did my work. I’m here to let everybody know I’m not going to stand for this.” Griffin later joined a union on his own.

Lawsuit Against Forest City Ratner And The Fallacy Of Relying On A White-owned Monopoly To Create Construction Work For The Minority Community

Noticing New York

I’d like to focus on one particular aspect of the lawsuit, the question of what Forest City Ratner really ought to owe everyone. The plaintiffs are represented by South Brooklyn Legal Services and one of the attorneys I spoke to today commented that it was sort of absurd that Forest City Ratner had to be sued for not delivering what was essentially the jobs “sweetener” promised for getting control over all the acreage associated with Atlantic Yards. I think that actually trivializes the debt that Forest City Ratner is walking out on.

It is astounding to think that with the resources of its huge mega-monopoly Forest City Ratner is stiffing people for even these few jobs. The 22 acres of Atlantic Yards are contiguous to other Ratner-owned acreage, making for 30 contiguous Ratner-owned acres at the site, with 50+ Ratner-owned acres in the area. That’s an awful lot of mega-monopoly tying up resources in the community accompanied by an unwillingness to hand out jobs.

More important, it should not be overlooked that the creation of the Ratner mega-monopoly precluded and destroyed other jobs. Therefore, I don’t think it is a case of Ratner just owing the community or individuals the few jobs that were the promised sweetener in connection with all the Ratner takings; what Ratner owes the community ought to be commensurate with all the jobs destroyed or precluded by the mega-monopoly.

Bait and switch? Ratner sued over ‘sham’ job-training program

The Brooklyn Paper
by Daniel Bush

Atlantic Yards developer Bruce Ratner set up a “sham” job-training program that ended up screwing workers out of promised union positions on his $5-billion mega-project, a bombshell lawsuit charged on Tuesday.

The workers say that they were promised union membership and jobs in exchange for taking a 15-week apprenticeship course in 2010, but were never hired on at the Prospect Heights site — which includes the Barclays Center and 16 residential towers on a 22-acre parcel of land stretching from Flatbush Avenue to Vanderbilt Avenue.

“They told us they would set aside jobs,” said Kathleen Noriega, one of the plaintiffs. “What they did was wrong and misleading.”

Noriega and six other plaintiffs are being represented by South Brooklyn Legal Services, which has long been involved in Atlantic Yards-related suits.

“The project developers … blatantly violated many federal and state statutes designed to protect individuals from exploitation,” said lawyer Molly Thomas-Jensen. “The project developers … also made promises, to community members and directly to the plaintiffs in this case, that they have broken.”

November 15, 2011

Workers allege that Forest City Ratner and the non-profit BUILD failed to deliver promised union cards and jobs following unpaid apprenticeship program.

Park Slope Patch
by Amy Sara Clark

Claiming they were duped, seven Brooklyn construction workers are sueing the developer of the Atlantic Yards Project and a local community organization for failing to deliver union cards and construction jobs they said were promised at the end of what they call a “sham” job-training program.

“I was robbed,” said Maurice Griffin of Crown Heights at a news conference today in the shadow of the rising Barclays Center. Griffin, like many of the plaintiffs, quit a job to join the program.

”I would never have joined this pre-apprenticeship program if it wasn’t agreed (guaranteed) to me that I would have a union card upon completion,” he said.

Councilwoman Letitia James, who organized the press conference, called both the pre-apprenticeship program and the Atlantic Yards Project “the greatest bait-and-switch in the history of Brooklyn.”

Developer Forest City Ratner said, "We have already generated 50 percent of the projected economic activity for phase one. Were it not for the delays brought on by opponents of the project, including some of those behind this law suit, even more people would be employed right now.”

NoLandGrab: "Some of those behind this law suit?" The people "behind" this lawsuit are seven former Atlantic Yards-supporting BUILD members who got screwed over by Forest City & friends.

The seven plaintiffs participated in a Pre-Apprenticeship Training Program, created by the project developers totrain community residents for construction jobs within the arena and project. The plaintiffs alleged that they were repeatedly and consistently told that upon completion of the program they would earn membership in building trades unions whose workers would be employed by the Project. Instead, they said they never received any offers of employment at Atlantic Yards, and were only employed for two months in the construction of a house on Staten Island, for which they received no wages or other compensation.

The suit seeks the recovery of unpaid wages as well as damages based on alleged false promises. The plaintiffs are represented by South Brooklyn Legal Services (a program of Legal Services NYC) and Emery Celli Brinckerhoff & Abady LLP.

Forest City Ratner and Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development) have made extensive promises regarding construction jobs for locals at the Atlantic Yards project, a new lawsuit contends, but have not come through.

Notably, the plaintiffs include some people who vocally supported the project with the expectation of jobs. The Daily News reports that workers who say they were promised Atlantic Yards construction jobs instead got "a sham training program" and "offers to work in maintenance, a health club and McDonald’s."
...

Were workers guaranteed construction work, as alleged? No, BUILD CEO James Caldwell told the newspaper. His organization, along with the deeper-pocketed Forest City Ratner, and individual company executives, are named in the suit.

Forest City declined comment until the company sees the suit. Likely crucial to the case is what specifically the trainees were promised, and how that can be established in court.

Seven construction workers, including former outspoken supporters of Atlantic Yards, promised union cards and construction jobs on Bruce Ratner's Atlantic Yards project are filing suit in federal court today against the developer, the community group funded by him, Brooklyn United for Innovative Local Development (BUILD), and others.

Remember, it was Mayor Bloomberg who was famously caught on tape, as seen in the film "Battle for Brooklyn," saying that legal agreements aren't necessary because, "You have Bruce Ratner's word. That should be enough for you." It appears that neither his words or agreements carry much weight.

The only promise kept so far is to construct a money losing, community disruptive, environmentally damaging billion dollar arena in the midst of a housing crisis for a team in a league that is currently working its way into oblivion.

One of the plaintiffs had this to say: “I believed I was going to be employed, that jobs were going to come into my community. …It was all lies.” Meanwhile, the president of BUILD says the program never guaranteed construction jobs. Matthew Brinckerhoff, the lawyer representing the plaintiffs along with South Brooklyn Legal Services, is quoted as follows: “It’s galling that people living in the community were conned into enthusiastically supporting this project based on the promise of jobs.”

The workers say they enrolled in Ratner's training program for construction workers on the project, weren't fully compensated for the work they performed during the training and afterwards were offered jobs in maintenance, a nearby health club and a McDonald's.

They say they were promised good paying union jobs on Brooklyn’s largest construction site.

But what they got from what a new lawsuit charges was a sham training program were offers to work in maintenance, a health club and McDonald’s.

Seven construction workers will sue developer Bruce Ratner Tuesday, accusing him of falsely promising them the moon to win political and community approval of his controversial Atlantic Yards project.

He not only failed to deliver the jobs but also stiffed them for work they performed in the training program, they allege.

“I believed I was going to be employed, that jobs were going to come into my community,” said electrician Kathleen Noriega, 58, of Crown Heights.

“It was all lies,” said Noriega, one of the plaintiffs filing suit Tuesday in Brooklyn Federal Court.

The suit contends Ratner claimed plans for a new sports arena for the Nets and 16 residential and commercial skyscrapers would create 17,000 union construction jobs and 8,000 permanent jobs.

Noriega said she was a vocal supporter of the project’s training program, which offered construction workers membership in building trade unions. Many of the organizations that signed on to train the workers, like Brooklyn United for Innovative Local Development, were bankrolled by Ratner, according to the suit.

BUILD President James Caldwell, who is named as a defendant in the suit, defended the program, saying most of the 36 participants have been placed in maintenance jobs at other Ratner properties.

Caldwell denied anyone was guaranteed construction work.

“Just like Forest City Ratner made adjustments, (in the size of the project) we had to make adjustments,” Caldwell said.
...

“It’s galling that people living in the community were conned into enthusiastically supporting this project based on the promise of jobs,” said lawyer Matthew Brinckerhoff who is representing the plaintiffs, along with South Brooklyn Legal Services.

November 14, 2011

Federal lawsuit to be filed against Forest City Ratner Companies LLC, and others for damages based on unpaid wages and false promises

City Councilmember Letitia James issued the following media advisory this afternoon.

Council Member James, State Senator Velmanette Montgomery, South Brooklyn Legal Services, Clergy and Community to Hold Press Conference in Support of Brooklyn Residents Persuaded into Participating in Deceptive Atlantic Yards Training Program

Press Conference This Tuesday, November 15, 3:30pm at 67 Hanson Place and South Elliott place - in front of the District Office of Council Member James

Federal lawsuit to be filed against Forest City Ratner Companies LLC, and others for damages based on unpaid wages and false promises

A group of Brooklyn residents who participated in a job-training program negotiated as part of the Atlantic Yards project plan to file a federal lawsuit against the Atlantic Yards Development Company LLC, Brooklyn Arena LLC, Brooklyn United for Innovative Local Development, Forest City Ratner Companies LLC, Bruce Ratner and others.

The suit seeks the recovery of unpaid wages as well as damages based on false promises. The plaintiffs are represented by South Brooklyn Legal Services (a program of Legal Services NYC) and Emery Celli Brinckerhoff & Abady LLP.

WHO: Elected Officials, Clergy, Lawyers, and Plaintiffs

WHAT: Press Conference to Announce Lawsuit against Atlantic Yards Development Company LLC and others

WHEN: Tuesday, November 15 at 3:30pm

WHERE: 67 Hanson Place and South Elliott Place in front of the District Office of NYC Council Member Letitia James

November 6, 2011

If both parties got charged in the Boyland bribery case, finishing up in federal court, why did Forest City Ratner (or an affiliate/staffer) get a bye with Ridge Hill?

Atlantic Yards Report

A current federal bribery trial sets up a distinct contrast with a case involving Forest City Ratner.

In an 11/2/11 article headlined Corruption Trial Opens for Lawmaker From Brooklyn Political Family, the New York Times reported:

An assemblyman from one of Brooklyn’s most prominent political families struck a secret deal to use his influence in Albany on behalf of a hospital chief executive in return for a sham consulting job that paid him about $175,000, a federal prosecutor said Tuesday.

The assemblyman, William F. Boyland Jr., “demanded a no-show job to enrich himself,” the prosecutor, William J. Harrington, told the jury as the politician’s trial began in Federal District Court in Manhattan.

“Boyland did no meaningful hospital work,” Mr. Harrington said, adding that what the hospital, Brookdale University Hospital and Medical Center in Brooklyn, got for its money was “a paid advocate in Albany, a politician on the take.”

...On Tuesday, a lawyer for Mr. Boyland told the jury there was no evidence that his client had accepted bribes and that the government’s case “rests really on cynicism, speculation and suspicion, because you are not going to find evidence of that unlawful agreement,” the lawyer, Richard H. Rosenberg, said in his opening statement.

He said Mr. Boyland had done genuine consulting work for Brookdale, an arrangement he had reached with David P. Rosen, then the chief executive of MediSys, the nonprofit sponsor of Brookdale and other hospitals, nursing homes and neighborhood health centers in Queens and Brooklyn.

...Mr. Rosen was tried this summer by Judge Jed S. Rakoff — in a nonjury trial, at Mr. Rosen’s request. In September, Judge Rakoff issued a ruling finding Mr. Rosen guilty of seeking to bribe Mr. Boyland and two other Democratic officials — Assemblyman Anthony S. Seminerio of Queens and Senator Carl Kruger of Brooklyn — in return for favorable treatment for MediSys.

What about Ridge Hill?

As I wrote in March 2010:

After all, City Council Member Sandy Annabi changed her vote to approve the project and was indicted for accepting bribes. Her cousin, Zehy Jereis, was indicted for giving them.

FCR, which hired Jereis for an apparent no-show job, was not indicted and issued a statement indicating that it had been told by federal prosecutors that neither it nor its employees was a "target" of the investigation.

If so, that suggests either that prosecutors lack sufficient evidence to indict the developer and/or that they believe the developer's cooperation justifies not seeking its indictment.

Thus, FCR not only escaped sanction for some questionable behavior--it has never explained or justified the no-show contract--it also can continue to benefit from a zoning change that was, according to prosecutors, illicitly gained.

If Rosen, who arranged the consulting job for Boyland, was tried and convicted, why has the person (or party) who arranged the no-show job for Jereis given a pass? (Jereis has yet to come to trial.)

October 9, 2011

Remember how it was just fine for the ubiquitous environmental consultant AKRF to have worked for Atlantic Yards developer Forest City Ratner before the Empire State Development Corporation (ESDC) hired it to do the Atlantic Yards environmental review? (That review, for example, underestimated the impacts of construction noise on surrounding residents.)

Remember how it was also kosher for AKRF to have worked for Columbia University simultaneously while working for the ESDC?

In both cases, the New York State Court of Appeals, upholding eminent domain, thought nothing of the seeming conflict.

...

Yesterday, in a through-the-looking-glass article headlined Pipeline Review Is Faced With Question of Conflict, the New York Times tells us that that kind of conflict might be bad--at least in federal cases:

The State Department assigned an important environmental impact study of the proposed Keystone XL pipeline to a company with financial ties to the pipeline operator, flouting the intent of a federal law meant to ensure an impartial environmental analysis of major projects.

The department allowed TransCanada, the company seeking permission to build the 1,700-mile pipeline from the oil sands of northern Alberta to the Gulf Coast in Texas, to solicit and screen bids for the environmental study. At TransCanada’s recommendation, the department hired Cardno Entrix, an environmental contractor based in Houston, even though it had previously worked on projects with TransCanada and describes the pipeline company as a “major client” in its marketing materials.

While it is common for federal agencies to farm out environmental impact studies, legal experts said they were surprised the State Department was not more circumspect about the potential for real and perceived conflicts of interest on such a large and controversial project.

John D. Echeverria, an expert on environmental law, referred to the process as “outsourcing government responsibility.”

The subsequent study, released at the end of August, found that the massive pipeline would have “limited adverse environmental impacts” if operated according to regulations. That positive assessment removed one of the last hurdles for approval of the proposed pipeline.

"Outsourcing government responsibility" is par for the course in New York, though I don't see AKRF trumpeting its clients.

September 15, 2011

Governor (Status) Cuomo and his new appointee heading the Empire State Development Corporation (ESDC), Kenneth Adams, have decided that the most responsible thing it can do for the public in reaction to a July court order to rationally examine the environmental impacts of the 25-year (at minimum) Atlantic Yards project is to...appeal that court order.

The ESDC, again, is acting solely on behalf of the developer Forest City Ratner while gifting the public (DDDB and BrooklynSpeaks foremostly) the present of having to fight off an appeal that shouldn't have been brought in the first place.

Oh, and all the local politicians had called on Adams and the Governor to comply with the court order.

September 14, 2011

ESDC, Forest City to appeal state court judge's ruling that requires Supplemental Environmental Impact Statement; legislators had asked state to comply with decision

Atlantic Yards Report

When it comes to Atlantic Yards and New York State government, everything is Status Cuomo.

Does the impact of extended Atlantic Yards construction, which could last 25 years, need to be studied further?

No, say the Empire State Development Corporation (ESDC) and Forest City Ratner. They're appealing two decisions made by state Supreme Court Justice Marcy Friedman--strong criticisms of the state's processes--leading to 7/13/11 ruling and order that the ESDC conduct further environmental review, including a Supplemental Environmental Impact Statement (SEIS).

The defense argument, as described further below, is that it was "rational in all respects, and adequately supported by the record" for the state to assume a ten-year buildout and to assume that no significant adverse environmental impacts had not already been analyzed.

The question for the appellate court is whether, indeed, it was "rational"--not clear and convincing but simply "rational." That's a very low bar for a state agency to meet in an environmental review proceeding, which is why Friedman's rulings against the state were unusual.

The petitioners--in two combined cases--include civic groups organized by BrooklynSpeaks and Develop Don't Destroy Brooklyn (DDDB), as well as several individuals and local elected officials. The appeal decision was announced yesterday by BrooklynSpeaks, which in recent months has taken more of a leading role in the litigation.

September 13, 2011

Empire State Development Corporation and Forest City Ratner to fight court order to revisit 2009 Atlantic Yards Plan

BrooklynSpeaks

Today, BrooklynSpeaks announced that the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC) have served notice that the two plan to fight a July court decision ordering further environmental review of the Atlantic Yards project. The decision came after nearly two years of litigation by BrooklynSpeaks’ sponsors, local elected officials and community members, which challenged ESDC’s 2009 approval of plan changes increasing the duration of project construction from 10 to 25 years.

State legislators from the communities surrounding the Atlantic Yards project have previously called on the Empire State Development Corporation (ESDC) to comply with the court order to reconsider the 2009 Modified General Project Plan. In a letter to ESDC CEO Ken Adams from Assemblyman Hakeem Jeffries and signed by Assembly Member Joan Millman, State Senator Eric Adams and State Senator Velmanette Montgomery, the officials point to troubling facts. “More than seven years have passed since Atlantic Yards’ announcement, and almost five years have passed since its original plan was approved. In that time, we have seen the promises of affordable housing and local jobs move nearly a generation into the future,” they wrote. The legislators also note extended use of the site for 1,100 surface parking spaces, and the removal of project elements intended to reduce the impact of locating an arena in a residential neighborhood, as critical changes introduced with the 2009 plan. Assemblyman Jim Brennan, Chair of the Committee on Corporations, Authorities and Commissions, has written separately to CEO Adams urging ESDC not appeal the July decision. “I believe that it is in the interest of the whole Brooklyn community to comply with Judge Friedman’s order,” Assemblyman Brennan stated.

Filing of the appeal by FCRC and ESDC stays ESDC’s obligation to comply with the court order, thus delaying changes to the Atlantic Yards plan that would accelerate the delivery of affordable housing, create more jobs, and reduce the impacts of the additional 15 years of construction cited in the court’s decision.
...

Said Gib Veconi of the Prospect Heights Neighborhood Development Council, “The 2009 Atlantic Yards plan may have been negotiated under the previous administration, but the July court decision makes it Governor Cuomo’s problem now. We expected the Governor to follow through on his promises to reform State government, turn around delayed development at Atlantic Yards, and make this project work for Brooklyn and for New York State. Instead, it looks like he’s willing to continue to run interference for Forest City Ratner.

Will judge's decision requiring Supplemental EIS be appealed? Unclear, but we should know by mid-September

Remember, the Empire State Development Corporation (aka Empire State Development) was ordered to conduct a Supplemental Environmental Impact Statement (SEIS) for Phase II of the Atlantic Yards project and was criticized for "arbitrary and capricious" reliance on the assumed--but not credible--ten-year buildout.

Well, the state can comply, or it can appeal. And it hasn't decided.

Note that, given the low judicial bar, requiring government agencies to have merely a "rational" basis for their decisions, it's very unusual for judges to lodge such criticism--one of the reason, I'd argue, for the significance of state Supreme Court Justice Marcy Friedman's ruling.

State posture

Last week, I asked Arana Hankin, Director, Atlantic Yards Project for the ESD, about the status of the case.

"We're still discussing our options internally," Hankin said, during a longer interview. "We feel strongly that we complied with all the SEQRA [State Environmental Quality Review Act] laws and all applicable laws. We understand that there may be a need for us to reevaluate some things, or possibly take another look... But we haven't made any final decisions yet. We have until September 16 to appeal. So we're still talking internally, with everyone, including the second floor [governor's office] about how we're going to respond."
...

Note that developer Forest City Ratner was a co-defendant in the case, brought by two coalitions of community groups, led by Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council, the latter on behalf of BrooklynSpeaks.

Also note that Forest City Ratner pays the fees of the ESDC's outside counsel in this case.

The state agency takes the lead, but, if I had to bet, I'd bet that Forest City Ratner is pushing for an appeal. Cost is merely one factor, and Forest City was once willing to pay a high-priced lawyer to try to avoid a relatively small fine for improper demolition.

So the developer (and the state) might want to see a critical ruling overturned.

July 27, 2011

PHNDC's Veconi on the lessons of the latest Atlantic Yards ruling: the state "is willing to risk breaking the law" when it helps Forest City Ratner

Atlantic Yards Report

In a July 23 op-ed in Prospect Heights Patch, Lessons from the Community’s Atlantic Yards Win, Gib Veconi of the Prospect Heights Neighborhood Development Council (a component of BrooklynSpeaks), analyzes the significance of Justice Marcy Friedman's July 13 ruling ordering the Empire State Development Corporation (ESDC) to conduct a Supplementary Environmental Impact Statement.

Among the lessons:

ESDC is willing to risk breaking the law when it helps FCRC [Forest City Ratner]. ESDC had previously shown itself willing to exploit New York State’s regressive eminent domain laws to transfer private property to FCRC. The Friedman decision shows that the agency is also willing to violate State environmental laws when doing so is economically beneficial to FCRC. Furthermore, the experience of this lawsuit shows that ESDC has no compunction about obfuscating in court to conceal what it knows when the facts are. This is a truly chilling realization when one considers that ESDC has sole formal responsibility for Atlantic Yards oversight.

The courts aren’t a substitute for responsible project governance.... Justice Friedman’s decision left ESDC with the responsibility of correcting its prior error in not preparing an SEIS, even though her previous decisions in the case had excoriated the agency for lack of transparency it is review, and for not informing the court of key facts during trial....

The collective judgment of our local elected officials should be sought and respected on major project decisions. Unlike other large ESDC projects, Atlantic Yards does not now have a dedicated subsidiary with a board including outside directors to give balance to decision-making. Instead, the agency in effect delegates its authority to FCRC.
...

Who's the community?

Veconi's op-ed continues one dismaying pattern in discussion of the lawsuit. Two separate coalitions, led by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks, filed separate lawsuits, which were consolidated.

Thus, the win was shared, even though DDDB ultimately let BrooklynSpeaks take the lead in court.

Lessons from the Community’s Atlantic Yards Win

Prospect Heights Patch
by Gib Veconi

On July 13, New York Supreme Court Justice Marcy Friedman delivered a major victory for the communities surrounding the Atlantic Yards project over the Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC). Among other things, the court found that ESDC’s failure to analyze the effects of extending construction of Atlantic Yards from 10 to 25 years meant its approval of the 2009 Modified General Project Plan (MGPP) lacked a rational basis. Justice Friedman ordered ESDC to prepare a supplemental environmental impact statement (SEIS) and reconsider the modified plan after its new impacts have been assessed. Although the Friedman decision did not receive detailed press coverage, community members can find in it important lessons for the future of advocacy on Atlantic Yards.

July 26, 2011

Appeals Court Rejects Dallas Developer’s Claim That Book About Eminent Domain Defamed Him

Author and Publisher Protected by First Amendment

Institute for Justice

In an important victory for the First Amendment, a unanimous Texas Fifth Court of Appeals has handed a major defeat to Dallas developer H. Walker Royall in his defamation lawsuit against the author and publisher of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land. In November 2009, a Dallas trial court issued a blanket denial of Carla Main and Encounter Books’ claims that the book is protected by the First Amendment, prompting the appeal.

Late yesterday, the Dallas appellate court reversed the trial court’s judgment and held that Royall failed to produce evidence that anything in Bulldozed defames him in any way. The opinion [PDF] reaffirms that criticism of public projects is protected by the First Amendment, and that developers who are involved in those projects cannot hide behind defamation law to escape criticism over their role.

“Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” said Dana Berliner, senior attorney at the Institute for Justice, the nonprofit public interest law firm that is defending Main and her publisher. “The appeals court has exposed the frivolity of Royall’s lawsuit, holding that Royall failed to prove that a single word of Bulldozed defames him.”

Published in 2007, Bulldozed chronicles events in Freeport, Texas, where Royall signed a development agreement to have the city take land owned by Western Seafood—a generations-old shrimping business—and give that land to Royall’s development company for a luxury yacht marina.

July 18, 2011

The Atlantic Yards Report über-blogger pens a lengthy analysis of last week's court decision for The Huffington Post.

The local press recently applied team coverage to the slaying of an eight-year-old Hasidic boy in Brooklyn and the perjury trial of pitcher Roger Clemens, but an important court ruling regarding the controversial Atlantic Yards project in Brooklyn received either minor mention or -- in the case of the New York Times and the New York Daily News -- a complete blackout.

That's a shame, because the decision confirms what many Atlantic Yards opponents, and even some more neutral observers, have long believed: the New York State agency in charge of the arena-cum-skyscrapers project has bent over backwards to accommodate developer Forest City Ratner.

And that message, also contained in the new documentary Battle for Brooklyn, suggests the much-touted move of the New Jersey Nets to Brooklyn will be forever tainted.

July 16, 2011

Barclays Center marches on

John Brennan, who has closely covered the AY story for The Record in New Jersey, gives his assessment of this week's legal decision .

When is a legal victory not a legal victory here on Meadowlands Matters?

When a New York court rules that a New York state agency erred in its conclusions regarding environmental impact analysis of the Atlantic Yards project – but declines to stop construction on the Nets’ $1 billion Barclays Center home at the site.

...

On Wednesday, a state Supreme Court Justice took the rare step of overturning a decision by a state agency – in this case, the Empire State Development Corp., which oversees the Atlantic Yards plan.

In short, the judge found that the use of a 10-year timetable for environmental impact was incorrect because even the ESDC’s own paperwork contemplates a 25-year timeline – if not longer.

...

The matter now winds up to some extent in new Governor Andrew Cuomo’s hands. It’s conceivable that the project’s entire scope could be changed dramatically, and more environmental studies likely will have to be done.

But from the Meadowlands Matters frame of mind, what’s most relevant is this: There is no stopping the Barclays Center from being built, not even a judge unhappy with the agency that has jurisdiction over it.

Court Says ESDC Has to Take Another Look: More headlines

Construction of the Nets' new Brooklyn arena may be on pace to be completed next year, but a state judge's ruling yesterday puts much of the rest of the embattled $4 billion Atlantic Yards project in further jeopardy.

Supreme Court Justice Marcy Friedman ruled the Empire State Development Corp. illegally approved changes to the Prospect Heights project in 2009 by relying on an out-of-date, pie-in-the-sky 10-year timeline for the plan, which also includes 16 residential and office towers.

Instead, the effects of a project that could take 25 years to build should have been considered, she said.

Friedman isn't requiring developer Bruce Ratner to halt construction on the arena, which will house the NBA team, or the rest of his project's long-delayed first phase. But she did order the corporation to conduct a new environmental review for the project's larger second phase, which includes 11 of the residential towers -- a move that could set it back many more years.

It's a little late, but a New York Supreme Court judge has ruled that the Empire State Development Corporation should have given the Atlantic Yards project a more thorough environmental review before approving it in 2009. Oops. So what does the rebuke mean for the future of Atlantic Yards? Not much! Or a lot, depending on who you ask. The Journal notes that the judge won't be ordering a construction halt on Atlantic Yards' first phase, which includes the Nets arena, to be finished next year, and four towers. But the judge did request a new environmental review for the project's second phase, and the Post predicts this could set that phase back significantly. Develop Don't Destroy Brooklyn has taken the opportunity to urge Governor Cuomo for a "complete reassessment" of the project. Doesn't hurt to try, right?

The agency supervising New York's controversial Atlantic Yards project must reevaluate how extensive delays in the second phase of enormous development will affect the surrounding communities, a state court judge ruled.

The results of the supplemental study may unravel plans to build more than two-thirds of the project's high-rise buildings, critics of the project say.

...

Established in 2004, the nonprofit Develop Don't Destroy Brooklyn has been leading 26 community and neighborhood groups in a lawsuit against the developers and state agencies behind Atlantic Yards.

Citing the Final Environmental Impact Statement, the organization says that the project's skyscrapers will cover blot out the sun from nearby neighborhoods, flood communities with game-time traffic surges and drive out local residents in a process they describe as "instant gentrification."

Although the judge did not grant all of the demands sought by Develop Don't Destroy Brooklyn (DDDB), the organization said in a statement that it was "very pleased" with the ruling.

"DDDB has always argued that the claimed benefits were illusory and would never occur and the community would be burdened by a poorly conceived project," the organization's legal director Candace Carponter said in a statement. "It is now clear that the timeframes and benefits of the original project were never even remotely feasible."

July 15, 2011

Supreme Court judge orders new study of Atlantic Yards impact

The Brooklyn Paper
by Daniel Bush

A judge handed Atlantic Yards opponents a minor victory this week, ordering a new environmental review of Bruce Ratner’s $4.9 billion project — but one that is unlikely to halt the development of the under-construction Barclays Center.

On Wednesday, Supreme Court Judge Marcy Friedman ruled that the state acted illegally in 2009 when it approved the plan for the 22-acre Prospect Heights site without assessing the long-term impacts that its 25-year build-out would have on surrounding neighborhoods.
...

Friedman ordered the Empire State Development Corporation to conduct a new environmental study of the post-arena phase of the project, which consists of 11 additional high-rises slated to go up west of Sixth Avenue.

You can call the victory "minor" in the sense that it will have a minor impact on the project under construction. It could have a much larger impact on Phase II.

But it is much more than a minor victory in court, if you consider that judges almost always defer to government agencies, which need merely a "rational" basis for their decisions. The ESDC's ten-year timeline didn't pass that very minimal "rational" basis test.

Why should it have passed that test? After all, the ESDC's own CEO, in April 2009, admitted that Atlantic Yards would take "decades."

In other words, the decision confirms the belief--at least among many opposing the project or watching it closely--that the state has leaned over backward to accommodate the developer, Forest City Ratner.

Develop Don’t Destroy Brooklyn scored a victory in a New York State Supreme Court Tuesday in its fight to force Forest City Ratner Cos. to re-imagine its Atlantic Yards project.
...

Jeff Baker, an attorney for DDDB, tells GlobeSt.com that he hopes the delay will provide time to re-evaluate the project.

“What it means at a minimum is that they have to go back and do a further environmental review and make the necessary findings to go forward with Phase II,” he says. “It’s an opportunity now, with a new administration, to take a fresh look at the project and do a better scale and a better structured development that will redevelop the area but not create a monstrosity or doom it to a protracted, 25 years or more construction schedule.”
...

Candace Carponter, the DDDB legal director, says that she’s not worried about Judge Friedman’s ruling being overturned. “She was very careful in writing this decision to make sure that it was unassailable on appeal,” Carponter says. “I believe that it will not be overturned. I’m not even sure that the ESDC will attempt to appeal it because I think it is such a strong decision.”

"We're satisfied with this decision," said attorney Jeff Baker who represents the group Develop - Don't Destroy, Brooklyn, which brought the suit. "We wish it had come a bit earlier because it could have stopped the whole project."

July 14, 2011

Looking at Friedman's ruling: no coverage in the Times or Daily News, no press mentions of delay in consideration of the Development Agreement

Atlantic Yards Report

So how big news was a judge's decision yesterday ordering a Supplemental Environmental Impact Statement for Phase II of the Atlantic Yards project and criticizing the state agency for "arbitrary and capricious" reliance on a not-believable ten-year buildout?

Judging by the coverage, only moderate. The Wall Street Journal and New York Post, among others, covered the story.

The New York Times and New York Daily News, pouring resources into the horrible killing of an eight-year-old Brooklyn boy, passed on the story.

Will they get to it today? The Times's commercial real estate reporter, Charles Bagli, is on leave, and the Brooklyn bureau is tiny. The Daily News's main reporter on Atlantic Yards, Erin Durkin, had three bylines in today's paper, all worthy stories: on Broadway Triangle in Williamsburg, Marty Markowitz's concert series, and St. Ann's Warehouse's bid for the Tobacco Warehouse in Brooklyn Bridge Park.

The New York Observer, its main Atlantic Yards reporter on vacation, missed the story. The Brooklyn Paper hasn't covered the story yet, either.

The missing history

And almost nobody, it seems, remembers the withheld Development Agreement--crucial, as I wrote yesterday, to the case.

A judge says Brooklyn's Atlantic Yards development project must undergo further environmental review.

A judge ruled Wednesday that the Empire State Development Corp. erred in granting approval to developer Bruce Ratner's basketball arena and housing project by not first conducting a thorough environmental review.

July 13, 2011

Court Says State Erred in Ratner Plan Review

The Wall Street Journal
by Eliot Brown

New York state's development agency erred in granting a 2009 approval to developer Bruce Ratner's Atlantic Yards basketball arena and housing project by not first conducting a thorough environmental review, a judge ruled Wednesday.

The ruling is a rebuke to the agency, the Empire State Development Corp., which approved the use of eminent domain to make way for the controversial Brooklyn development in 2006. The agency also re-approved a slowed-down version of the project after Mr. Ratner renegotiated the deal in 2009.

“While we disagree with the decision,“ said Joe DePlasco, a spokesperson for the developer, “it does not stop us from continuing work on the project and will not impact our current construction schedule. The arena is scheduled to open, as planned, in September, 2012 and we are working aggressively to start the residential portion of the project.”

Judge Friedman ruled that the "ESDC's use of the 10 year build date in approving the 2009 Modified General Project Plan (MGPP) lacked a rational basis and was arbitrary and capricious," and that the ESDC failed to evaluate the impact of extensive delays for Phase II of the project. Phase I is already underway and involves the construction of a big basketball arena and beautiful sprawling parking lots. Phase II consists of the mixed-use residential and retail buildings with the low-income housing developer Bruce Ratner used to sugarcoat the project.

Today's NY State Supreme Court ruling against the Empire State Development Corporation and Forest City Ratner, condemning them for their irrational review of the Atlantic Yards project and ordering the state agency to conduct a Supplemental Environmental Impact Statement on Phase II of the project has a loooooong and winding backstory that couldn't possibly be captured in soundbites, press releases or print stories (or most blogs for that matter).

So leave it to Norman Oder, on his Atlantic Yards Report, to give the ins and outs of the sad history of this case which came down against the powerbrokers today.

Synchronicity is a funny thing; I was just about to write a blog item urging everyone to go to the Brooklyn Heights Cinema to catch the last few showings of a movie about the Atlantic Yards debacle, called Battle for Brooklyn (not to be confused with the actual Revolutionary War Battle of Brooklyn). When...pop!... into my email falls a press release so excited it nearly jumped off the cyber page, announcing a 9th inning change of fortune for Atlantic Yard community activists.

The judge did not halt construction of the arena – although that has morphed too — from a Frank Gehry landmark to a generic box. And Norman Oder writes in Atlantic Yards report, the judge did give the state and the developer, “significant breathing room” by not issuing a stay to top Phase II.

Michael Galinsky, the co-director of the documentary “Battle for Brooklyn” and a contributor to The Local, said he hopes that today’s decision will bring more government oversight to the Atlantic Yards project.

The grass roots group that sued the developer, Forest City Ratner Companies, to halt or modify the Atlantic Yards project said the court decision is a "golden opportunity" for Governor Andrew Cuomo to overhaul the costly project.

Battle for Brooklyn Press Release: Stunning defeat for Forest City Ratner and ESDC in AY Lawsuit sparks interest in Battle for Brooklyn

Today New York State Supreme Court Judge Marcy Friedman issued a stinging decision against the Empire State Development Corporation. Judge Friedman ruled that the "ESDC's use of the 10 year build date in approving the 2009 Modified General Project Plan (MGPP) lacked a rational basis and was arbitrary and capricious," and that the ESDC failed to evaluate the impact of extensive delays, at least 25 years, in the build-out of Phase II of the project.

The petitioners in the lawsuit, 26 community and neighborhood organizations led by Develop Don’t Destroy Brooklyn (DDDB), were very pleased about the ruling and the changes it must usher in politically.

The stunning news that the coummunity won a surprise victory in their lawsuit concerning the Atlantic Yards environmental impact statement could throw the rest of the project into doubt and brings new attention to "Battle for Brooklyn".

"For those people who have seen 'Battle for Brooklyn' it should come as no surprise that a Judge called foul on the process. Anyone who sees the film can see that the fix was in from the beginning, and hopefully now people will pay more attention," said co-director Suki Hawley.

"When they do a new environmental study there will clearly be more scrutiny, and that's a good thing. Perhaps this will even open the door to taking the community's alternate plan more seriously," added co-director Michael Galinsky.

Bruce Ratner's Atlantic Yards project and its purported benefits were never feasible, it was all smoke and mirrors. In the past year it has become clear to everyone that the project the developer promised and New York State approved is never going to happen. Rather, parking lots and a demolition zone would persist for decades.

But now, because of a Supreme Court ruling, there is a way out of this debacle and a golden opportunity for Governor Cuomo and his Empire State Development Corporation (ESDC) to fix the big Atlantic Yards mess in Prospect Heights, Brooklyn.
...

"While the Court felt it could only reverse the approvals for Phase II and require a new environmental review, it is time for Governor Cuomo to assert control over the ESDC and the project site and require a complete reassessment of the Atlantic Yards project," said DDDB attorney Jeffrey S. Baker. "We regret that the Arena is going forward. However, the project was never justified in phases. All of the purported benefits would have come from full development, not a stand-alone arena and a couple of high-rises.”

"DDDB has always argued that the claimed benefits were illusory and would never occur and the community would be burdened by a poorly conceived project. It is now clear that the timeframes and benefits of the original project were never even remotely feasible,” said DDDB Legal Director Candace Carponter. "We call on Governor Cuomo to ensure that the ESDC do an honest, unbiased analysis of the redevelopment of Atlantic Yards and consider a project that truly provides affordable housing, public opens space and meaningful benefits in a timely and financially feasible manner. ESDC should look at all aspects of the project, except the arena, and utilize the Unity Plan or other similar community inspired approaches to redevelop the area."

Referring to the Ratner tail wagging the State dog, Carponter added, "Governor Cuomo and the ESDC should establish their independence from Forest City Ratner and engage in true planning that involves the community and locally elected officials, and no longer act as Bruce Ratner's lap dog."

Atlantic Yards Lawsuit: Local Groups Victorious as Judge Slams Empire State Development Corporation (ESDC) For Breaking the Law by Approving Atlantic Yards’ 2009 Modified Plan; Calls Use of 10 Year Build Date “Not Rational"

BrooklynSpeaks

The BrooklynSpeaks groups were elated and called on Governor Cuomo to investigate the Project. “This decision sends a clear message that no State authority or politically-connected real estate developer can be above the law when the future of our neighborhoods hangs in the balance,” said Jo Anne Simon, Democratic Leader of the 52nd District. “We expect an investigation into how this was allowed and call on Governor Cuomo to now take decisive action in reforming oversight of Atlantic Yards, ESDC’s largest project.”

The suit was filed in November 2009 by several BrooklynSpeaks sponsors, local elected officials, and community members. The case was originally decided in favor of ESDC and FCRC in March of 2010 on the basis of representations made by ESDC as to the terms of its master development agreement with FCRC prior to the agreement being made available to the public. After the agreement was released and was found to contain no performance guarantees for a 10-year build out, the BrooklynSpeaks sponsors successfully argued for the case to be reopened.

Said Al Butzel of the Urban Environmental Law Center which represented the BrooklynSpeaks sponsors, “After reviewing ESDC’s justification for not preparing a supplemental environmental impact statement, the Court correctly concluded the agency lacked a rational basis for approving the developer’s proposed changes to the project. It was clear to us that the approval of the plan was rushed through illegally in order to enable FCRC to meet a deadline necessary for its arena bond financing.”

Breaking: Judge rules for community groups, says state failed to study impact of 25-year buildout, requires ESDC to prepare a Supplemental EIS, but refuses to stay current construction

Atlantic Yards Report

#Winning!

This will be updated.

In the second in a series of decisions finding for community petitioners who challenged the Empire State Development Corporation (ESDC), state Supreme Court Justice Marcy Friedman has criticized the agency for failing to study the impacts of an extended Atlantic Yards buildout, and ordered the ESDC to conduct a new phase of environmental review, including a Supplemental Environmental Impact Statement (SEIS).

While it is typical for judges to defer to agencies, as long as they have a "rational basis" for their decisions, Friedman, who slammed the agency last November for "what appears to be another failure of transparency," today found the "ESDC’s use of the 10 year build date in approving the 2009 MGPP lacked a rational basis and was arbitrary and capricious."

No stay, but perhaps a hearing

The decision will require additional bureaucratic hurdles and may require additional mitigation measures regarding an extended interim surface parking lot, or construction procedures. And it should help shape public perception that the ESDC has been too gentle with developer Forest City Ratner (FCR).

However, Friedman gave the ESDC and FCR significant breathing room. She refused to issue a stay on Phase I construction or other work on the project, and said it was premature to issue a stay regarding Phase II.

The judge remanded the issue to ESDC for further environmental review, including an SEIS assessing the environmental impacts of delay in Phase II construction; the conduct of further environmental review proceedings, including a public hearing if required by SEQRA; and further findings on whether to approve the Modified General Project Plan for Phase II of the Project.

She heard oral arguments in the latest phase of the case on 3/15/11. The petitioners included civic groups organized by BrooklynSpeaks and Develop Don't Destroy Brooklyn, as well as several individuals and local elected officials.

The case, however, began more than a year earlier, and had Friedman considered the contradiction between the Development Agreement, kept under wraps until after the first oral argument, and the ten-year buildout, she might have ruled differently in March 2010.

Lawyers from two community coalitions challenged the legitimacy of the Empire State Development Corporation's (ESDC) response to a court order requiring it to explain why it didn't need issue a Supplementary Environmental Impact Statement to study the impact of a potential 25-year buildout.

The ESDC made that response only because Friedman reopened a case she'd already dismissed.

Court activity often slows in the summer. If we don't see Friedman's ruling soon, we may not see it until September.

Should Friedman rule for the plaintiffs--coalitions and individuals (including elected officials) organized by BrooklynSpeaks, and groups organized by Develop Don't Destroy Brooklyn--the ESDC could be forced to look in great detail at the community impacts of 25 years of construction compared to ten years.

And that could lead to changes in the design or organization of the project--at least (or especially) for the part beyond the arena block.

Flashback: Waiting for Madden

I wrote 12/23/07 about how the challenge to the environmental impact statement was heard on May 3, and state Supreme Court Justice Joan A. Madden indicated she would try to rule promptly. In mid-July, Madden issued a memo (the first "Waiting for Madden") that stated she expected to have a decision in September 2007.

Madden finally ruled in January, eight months after the hearing.

The Daily News recently condemned her for sitting on a ruling for more than five months, thus allowing a homeless shelter being challenged to be built.

April 25, 2011

A blind spot toward the ESDC, and some questions of legal ethics regarding Atlantic Yards representations

Atlantic Yards Report

Yesterday, wry New York Times columnist Gail Collins wrote about "angry" new Republican governors in Wanna Buy a Turnpike?:

In Ohio and Wisconsin, angry new governors John Kasich and Scott Walker are taking economic development out of the hands of state bureaucrats and giving the job to new quasi-private entities that will be much more effective and efficient.

In Florida, where the Legislature did all that in the 1990s, the angry new governor Rick Scott has a bold plan to improve economic development by creating a State Department of Commerce that will be much more effective and efficient.

Really, just so there’s change and it doesn’t sound socialistic. “We don’t want to leave any money on the table,” said Kasich, who is planning to sell five prisons, the lottery and maybe do something with the turnpike. I’m from Ohio, and while I never did like the turnpike, I’ve always been a fan of history. I wonder if I could get a good deal on the Warren Harding homestead.

Collins might want to look in her own backyard, where the Empire State Development Corporation is a quasi-public (or, alternatively, quasi-private) entity that cuts through red tape in service to business, such as the New York Times Company (which benefited from eminent domain in building the Times Tower with Forest City Ratner) and Forest City Ratner, in its Atlantic Yards project.

Atlantic Yards and legal ethics

Yesterday, in Applying the Principles of Legal Ethics to New York Development: Lawyers Are Not Supposed to Represent Deceiving Clients, Noticing New York's Michael D. D. White pointed out that lawyers have an ethical duty to not only withdraw from representing a client who behaving dishonestly but to do so "noisily."

White, at a legal ethics seminar asked some hypothetical questions: does this apply to the lawyer representing the developer of a publicly financed real estate project, where, in essence, the public is the buyer.

The answer--given to a hypothetical, and with the caveat it wasn't actual legal advice--was yes.

White allows for a gray area, in which the Atlantic Yards hype might be dismissed as dubious assumptions and insufficiently backed up assertions, both of which are permissible.

He adds:

One area where it seems that misrepresentations of fact did occur is with respect to the misrepresentations to Justice Marcy Friedman about the legitimately expected timetable for the development of the mega-project was: With lawyer assistance it was represented to the justice that Forest City Ratner and ESDC officials expected to complete the project within ten years while withholding from her (and the plaintiff parties representing the public in opposing the project) documents between them providing for and clearly envisioning a multi-decade build-out.

Similarly, sale of the EB-5 investments to prospective Chinese “investors” has been rife with misrepresentation. Technically, the misrepresentations being made to the Chinese are being made to them as private parties on the other side of a business transaction (rather than just an unwitting public being subjected to a spiel) so a high standard should apply respecting any misrepresentations. On the other hand is there thinking that as the Chinese are not American citizens they should not be expected to benefit from the full protection of U.S. law?

The issue regarding the timetable was brought before Friedman in March, in a motion for sanctions against the lawyers representing the state and Forest City Ratner, though Friedman refused to hear oral argument.

The EB-5 misrepresentation seems like a stronger case. We'll have to see how that plays out.

April 24, 2011

Applying the Principles of Legal Ethics to New York Development: Lawyers Are Not Supposed to Represent Deceiving Clients

Noticing New York

This blogger's attendance a two hour course entitled “Legal Ethics: Real World Issues and Considerations” raises questions as to how what kind of ethics, if any, were followed by politicians and lawyers who helped get the Atlantic Yards development started.

One question that comes to mind is whether lawyers consider that a different standard does apply to Forest City Ratner and perhaps any developer that does publicly financed projects, the thinking being that when you are talking about projects financed by the public one has entered the realm of politics, a realm where truth is no longer important and “factual statements” take on entirely new definitions. A recent example of the extreme we have gone to in this regard was when an aide to Senate Minority Whip Jon Kyl (R-Ariz.), condoned Kyl’s senate floor whopper that abortions are, “well over 90% of what Planned Parenthood does” (only 3% of what Planned Parenthood does relates to terminating pregnancies) by saying the senator’s declaration of the percentage “was not intended to be a factual statement.” The political humorists are rightly having a field day with this “not intended to be a factual statement” ploy, Stephen Colbert and Wait Wait...Don't Tell Me! included.

Maybe in the political realm one can get away with virtually any misrepresentation of the truth no matter how “factual” sounding the statements appear to be. But would the perpetual Forest City Ratner promotions be acceptable if Ratner were foisting the transaction on a private party instead of the New York taxpaying public? The idea that a distinction might exist is an intriguing theory worthy of consideration but not necessarily the law.

...

One area were it seems that misrepresentations of fact did occur is with respect to the misrepresentations to Justice Marcy Friedman about the legitimately expected timetable for the development of the mega-project was: With lawyer assistance it was represented to the justice that Forest City Ratner and ESDC officials expected to complete the project within ten years while withholding from her (and the plaintiff parties representing the public in opposing the project) documents between them providing for and clearly envisioning a multi-decade build-out.

Similarly, sale of the EB-5 investments to prospective Chinese “investors” has been rife with misrepresentation. Technically, the misrepresentations being made to the Chinese are being made to them as private parties on the other side of a business transaction (rather than just an unwitting public being subjected to a spiel) so a high standard should apply respecting any misrepresentations. On the other hand is there thinking that as the Chinese are not American citizens they should not be expected to benefit from the full protection of U.S. law?

Read the full blog entry and see how a close look reveals that the law firm presenting this ethics course has worked to help the Atlantic Yards project over legal hurdles.

April 12, 2011

The House heard testimony today on a bill aimed at reining in eminent domain.

In an increasingly partisan nation, one issue unites Democrats and Republicans, liberals and conservatives: reforming eminent domain laws to end the use of public power for private gain. A bipartisan bill being considered in Congress right now would greatly discourage this abuse of power by stripping federal funding from any municipality that condemns private property for private development. This would finally provide some federal protection for the property rights of all Americans, especially the poorest and most-vulnerable, from the alliance of land-hungry developers and tax-hungry government officials.

H.R. 1433 (the “Private Property Rights Protection Act”) cosponsored by Representatives Jim Sensenbrenner (R-WI) and Maxine Waters (D-CA), prohibits states and municipalities from using eminent domain for private development if they have received federal economic development funds. It also prohibits the federal government from using eminent domain for economic development, which is defined as taking private property and transferring it to another private person to increase tax revenue, jobs or general economic growth. A nearly identical bill that was introduced immediately after the U.S. Supreme Court’s disastrous decision in Kelo v. City of New London passed the House overwhelmingly by a vote of 376-38, with the Senate never voting on passage.

Importantly, the bill would still allow eminent domain for traditional public uses like public utilities, roads and post offices, and would also allow local officials to remove properties that pose an immediate threat to public health and safety and put abandoned property to productive use.

April 7, 2011

Seeking balance over blight, academics suggest new standards, dropping underutilization, and tougher look at projects with more % of private benefits

This is Part 3 of a three-part series (Part 1, Part 2) on Fordham Law School's eminent domain symposium in February.

Atlantic Yards Report

Is there a reasonable compromise that would preserve the use of eminent domain as a tool for government while preventing dubious tactics like claiming underutilization--or cracks in the sidewalk--equal blight?

And shouldn't courts play some role in scrutinizing blight, especially for certain projects, ones which promise a greater ratio of private than public benefits?

In an intriguing paper titled The Use and Abuse of Blight in Eminent Domain, attorney (and part-time Columbia academic) Martin E. Gold and Lynne B. Sagalyn of Columbia Business School (and the book Times Square Roulette), set out a hierarchy of eminent domain projects, from those with clear public benefits to those with more private benefits.

Those at the bottom of the hierarchy deserve the most scrutiny, and thus a closer examination of blight findings. They mention Atlantic Yards as falling somewhere in the middle of the hierarchy and criticize some of the definitions used in the AY eminent domain case, notably underutilization.

Need for review

They make a strong case for redefinition, arguing that "effectively there is no review of blight findings in New York" and--as others have contended--the courts have abdicated their role in policing eminent domain.

So "thoughtfully crafted, objective and measurable, standards for the determination of blight" are needed:

If blight is to continue to be a condition and cornerstone for condemnations for renewal or economic development undertakings, it needs serious alteration; otherwise it will continue to serve more as an expensive foil for projects sought by developers and government officials, than as a screen filtering out lands that should be left alone.

April 6, 2011

This is Part 2 of a three-part series (Part 1) on Fordham Law School's eminent domain symposium in February.

Appellate Division Justice James Catterson was not the only person at a symposium February 11 to slam the New York Court of Appeals' decision in the Columbia (Kaur) and predecessor Atlantic Yards (Goldstein) cases.

After all, the former Public Advocate in New Jersey--a self-described "ACLU civil liberties lawyer"--declared that "the New York Court of Appeals basically abdicated any meaningful role for the judiciary in determining whether a blight designation even passed the laugh test."

And, though the court has indicated that the legislature should step in, panelists expressed little hope that the notoriously dysfunctional New York legislature would act to reform eminent domain laws.

In other words, even though the U.S. Supreme Court wouldn't hear the appeal in the case challenging the condemnation for the Columbia University expansion, a good number of legal experts agree that New York is an outlier.

April 5, 2011

This is Part 1 of a three-part series on Fordham Law School's eminent domain symposium in February.

Atlantic Yards Report

James Catterson, an Associate Justice of the New York State Supreme Court, Appellate Division, First Department, has been the most conspicuous judicial critic of eminent domain jurisprudence in New York, writing the plurality opinion, later reversed, denying the state's effort to condemn land for the Columbia University expansion, and penning a scorching concurrence in the case upholding dismissal of challenge to the Atlantic Yards environmental review.

In opening remarks lasting a little more than half an hour, the bow-tied Catterson--brisk, earthy, self-deprecating--offered what he termed a "Cook's tour" of the history of eminent domain.

Then, in the final minutes, he spoke about the November 2009 Atlantic Yards decision, Goldstein, et al., v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation, and the Columbia case, Parminder Kaur, et al., v. New York State Urban Development Corporation.

March 19, 2011

If LIU students don't care about their own university's basketball team, how do they care about Atlantic Yards?

Atlantic Yards Report

What must they be thinking on the Long Island University campus in Brooklyn?

In a 3/17/11 article headlined It May Be News to Brooklyn, but Basketball’s Spotlight Is on One of Its Own, the New York Times reported:

Now, L.I.U.-Brooklyn has jumped on the express to new heights. The university, by winning its conference championship, earned one of 68 bids to the N.C.A.A. basketball tournament. This Friday in Charlotte, N.C., it will play a polar opposite in school spirit, campus acreage and basketball tradition: the University of North Carolina.

Few on Flatbush Avenue seemed to know or care that the Blackbirds had made it. Junior’s Cheesecake, across the street, is stocked with sports memorabilia including a Brooklyn Nets jersey, but nothing from L.I.U.

There were no banners on campus, just two red electronic outdoor signs with a reminder to support the Blackbirds. The team did not sell out its home games until the Northeast Conference final, when the gym (capacity 1,800) was packed with students and faculty members, and some local groups who got free tickets.

...“We have had some spirit issues here over the years,” said Greg Fox, the associate athletic director for external relations. “We’re a commuter school, primarily, and our students tend to be more reactionary than proactive.”

The AY connection

Why is this important? Because the campus provost, Gale Stevens Haynes (a self-described basketball fan also quoted in the article) said in a sworn affidavit in the case challenging the Atlantic Yards timetable (heard this past week):

The students and faculty at LIU-Brooklyn are very supportive of the Atlantic Yards Redevelopment Project. The advantages of the Project are abundant.

... I know that the students and faculty of LIU-Brooklyn firmly believe that the important public benefits that will result from the Project will outweigh any adverse impacts of extended construction on our neighborhoods.

If LIU students don't care about their own university's basketball team, how do they care about Atlantic Yards?

March 16, 2011

Norman Oder has the complete blow by blow from yesterday's New York State Supreme Court argument over the failure of the Empire State Development Corporation to properly weigh the effects of 25 years (or more) of Atlantic Yards construction impacts.

What was likely one of the last court hearings in a long skein of Atlantic Yards legal cases was an inconclusive but hard-fought affair yesterday afternoon in state Supreme Court in Manhattan.

A lawyer for the community coalition BrooklynSpeaks assailed a "cover up" by the Empire State Development Corporation (ESDC) over the legitimacy of the ESDC's response to a court order requiring it to explain why it didn't need issue a Supplementary Environmental Impact Statement to study the impact of a potential 25-year buildout.

In response, the ESDC and developer Forest City Ratner (FCR) forcefully defended themselves.

Supreme Court Justice Marcy Friedman, who in a hearing last June had evinced skepticism toward the ESDC--and issued a ruling in November partly backing community petitioners, requiring the ESDC to make new findings--asked relatively few questions.

The judge, whose default posture seems to be weary, wary skepticism, ultimately expressed some exasperation with both sides.

She heard a request for a stay on Atlantic Yards construction--a request with the provision that ongoing arena construction could continue--but did not indicate when she'd rule.

No hearing on sanctions motion

One thing was clear: Friedman was not about to take seriously the unusual motion, filed by Develop Don't Destroy Brooklyn and by Brooklyn Speaks--and later withdrawn by the latter--for sanctions and lawyers' fees from the opposing side, for failure to produce the crucial Development Agreement last year in court.

Though that issue was the subject of some heated legal papers, Friedman said at the outset that she would not devote any oral argument time on it.

She announced she'd give each side 20 to 30 minutes for their arguments, but they each wound up taking about 45 minutes. As is typical.

NoLandGrab: Our favorite part? Forest City attorney Jeffrey Braun getting himself extolling the virtues of ubiquitous environmental impact consultant AKRF, calling them "rigorous" and the "gold standard" for such firms. Had we been able to cross-examine, we would have asked him, in all their rigor, how many times they've ever found a project had unacceptable impacts. If he could cite just one instance, we'd throw in the towel.

And as Norman Oder reminds us, the ESDC admitted at an early 2010 oversight hearing held by state Senator Bill Perkins, that AKRF has never provided a determination that did not lead to a blight finding. Perhaps Mr. Braun meant to say "gold standard for real estate developer-friendly" consultants.

March 15, 2011

What if the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) had made sure that the Development Agreement--which gives a 25-year deadline to build Atlantic Yards--was available before a January 2010 court argument, or allowed into the court record shortly thereafter?

The dispute over the timetable is the subject of a court hearing today in the last Atlantic Yards court case, as the case was reopened after it was initially dismissed, only to have the ESDC say it didn't need to have issued a Supplementary Environmental Impact Statement (SEIS) to study to impacts of a 25-year buildout.

And it's also fodder for a companion case before Supreme Court Justice Marcy Friedman, in which lawyers for Develop Don't Destroy Brooklyn (DDDB) seek attorneys fees and sanctions from the opposing lawyers and their clients for withholding the agreement, which the ESDC and FCR saw as key to guaranteeing the professed ten-year timetable.

Was the withholding of the agreement a legitimate disagreement about tactics, or was it frivolous and improper conduct?

Charges about the latter have lead to an unusual and bitter dispute.

Had the document been available, there would have been no need to file a motion to reargue the case--a motion that was partly successful, given that the case was reopened, and continues--argue DDDB lawyers.

In response, the ESDC and FCR, and their attorneys, have vigorously opposed such a request for sanctions, calling it unprecedented.

Only days after the one-year anniversary of the Atlantic Yards groundbreaking, the last standing lawsuit against developer Bruce Ratner’s mega-development will hit the courts.

Today opponents will reargue in Manhattan Supreme Court that the developer won approval from the state for the Atlantic Yards project in 2009 by submitting incomplete data. And Develop Don’t Destroy Brooklyn, one of two major activist groups opposed to the project, will also attempt to recoup some of their legal costs.

Lawyers for Develop Don’t Destory are suing the Empire State Development Corporation, the state agency overseeing the project, for $35,027.94 in legal fees, according to court documents. The group seeks back pay for its attorneys who spent several months challenging the decision that gave Ratner the green light to begin construction.

Opponents will also reargue that the approval of the project hinged on a timeline rooted in figures that forecast the completion of the entire Atlantic Yards project in 10 years, though subsequent data put completion of the Atlantic Yards as far away as 25 years. This extended timeline, opponents argue, was intentionally withheld from the courts to win a critical ruling shortly before the groundbreaking.

March 14, 2011

Battle over AY timetable goes to court tomorrow, led by BrooklynSpeaks: "benefits should not be conferred as the result of a ruse..."

Atlantic Yards Report

Coming tomorrow is a hearing in the last Atlantic Yards court case, a challenge to the Empire State Development Corporation (ESDC) that was initially filed in 2009, dismissed in March 2010, resurrected a few months later, partly upheld by a judge, and then waved away by the ESDC.

While a victory would, at best, delay arena construction slightly and require further study of the overall project timetable, the case aims to right the balance between the public interest and a government agency arguably willing to do a developer's bidding.

The case challenges the legitimacy of the ten-year project timetable that the ESDC board assumed when it approved the revised project in September 2009, and the failure of the ESDC to conduct a Supplementary Environmental Impact Statement to study to adverse impacts of a project that could last 25 years.

And, though the Supreme Court Justice Marcy Friedman in December refrained from issuing a stay on construction--a request that's been renewed--the dispute continues, as groups in the coalition BrooklynSpeaks forcefully questioned the ESDC's findings that a 25-year buildout would have no adverse impacts beyond those already studied.

The lead plaintiff in the BrooklynSpeaks coalition is the Prospect Heights Neighborhood Development Council (PHNDC). Among the plaintiffs are several neighborhood groups, residents, and local officials: City Council Member Letititia James, state Senator Velmanette Montgomery, and Assemblyman Jim Brennan.

DDDB steps back

The case consolidates two cases brought by groupings led by BrooklynSpeaks and Develop Don't Destroy Brooklyn, but the latter has submitted only one set of papers since December, as well as joining in the reply papers submitted by BrooklynSpeaks and letting the latter take the lead.

"After five years of litigation, we have become disillusioned with the judiciary, and doubt that any judge will stand up to Ratner and right the countless wrongs he has imposed and continues to impose on our community," commented Candace Carponter, DDDB legal director, in response to my query about DDDB's posture.

"On the other hand, this is BrooklynSpeaks' first lawsuit, and they are more optimistic than we that the court will do the right thing," she added. "Still, we believe in the challenge raised in our joint lawsuit, and don't want anyone to mistake our letting BrooklynSpeaks take the lead as acquiescence in any form. We remain vigilant for opportunities to expose this Project for what it really is."

Indeed, DDDB attorney Jeff Baker will be in court tomorrow arguing to require the ESDC and Forest City Ratner, and their lawyers, to pay DDDB for the costs of the additional legal work "DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year." (I should have more on this case tomorrow morning.)

Click through for Norman Oder's very detailed recap of what these cases are all about.

March 11, 2011

Why did Forest City Ratner try to get Carlton Avenue Bridge money from Kruger? Because they're scrounging for it; my queries haven't been answered

Atlantic Yards Report

Why was Forest City Ratner, as of December 2010, trying to get $9 million in state subsidies for the Carlton Avenue Bridge out of state Senator Carl Kruger, charged today along with lobbyist Richard Lipsky in a federal corruption case?

Because the developer still needs to pay for reconstruction of the bridge. (And the money sought from immigrant investors via the EB-5 program, though promoted as going to the bridge, would more likely go to refinance a land loan.)

I've tried several times over the past months to learn more about the bridge, to no avail.

I queried the New York City Department of Transportation (DOT) last November 12 regarding an apparently federal earmark as well as the current budget for and progress on the bridge. Despite several follow-up requests, I never got a response.

I posed the same questions to the Atlantic Yards District Service Cabinet on January 25 via City Council Member Letitia James and Carlo Scissura, the Borough President's Chief of Staff. No answers were forthcoming at the meeting February 10.

The Carlton Avenue Bridge is supposed to cost $40 million. The city in 2007 allocated $7 million. According to a 6/24/10 ESDC document (embedded below), which allowed the disbursal of additional City funds for the bridge:

It is expected that the Carlton Avenue Bridge related infrastructure work will cost in excess of $40 million. The City shall fund $24 million of the cost of the Carlton Avenue Bridge related infrastructure work. The remaining cost will be funded by Forest City.

Kruger took elaborate steps to hide the payments, having checks funneled through a company called Adex Management Inc., then through a shell company, Olympian Strategic Development.

Olympian was controlled by Michael Turano, a son of Kruger's longtime friend and local community board director, Dorothy Turano. Michael Turano was also charged Thursday.

Kruger is accused of receiving at least $1 million in bribes, sharing lobbying fees paid to Richard Lipsky, another defendant, and then taking the official acts in favor of which Lipsky had been paid to lobby.

If Forest City Ratner, which is not named, is not a target, this might be a repeat of Ridge Hill, in which the developer benefits from apparent corruption but is not penalized.

Can the Empire State Development Corporation repeat its statement, in response to my queries about Ridge Hill, that they "remain confident in Forest City as a developer and as a good corporate citizen"?

From the complaint

The complaint (page 7) notes defendant Richard Lipksy's clients "include, among others, a significant real estate development firm ("Real Estate Developer #1") which is spearheading an over $4 billion, multi-year, mixed-use commercial and residential development project in Brooklyn, New York, as well as various unions and associations...."

On p. 14, it states that Kruger has taken a number of official actions to benefit Lipsky's clients, including "Developer #1."

More coming...

Click through to the complaint, and begin reading at the bottom of page 21 to find out why the reconstruction of the Carlton Avenue bridge is taking so long. Warning: rated NC-17 for adult language.

March 8, 2011

That lingering lawsuit, an upcoming hearing, and some realism from BrooklynSpeaks affidavits about Atlantic Yards costs and benefits

Atlantic Yards Report

There's still one last Atlantic Yards court case, concerning the legitimacy of the ten-year timetable and the failure of the Empire State Development Development Corporation (ESDC) to conduct a Supplementary Environmental Impact Statement to study to adverse impacts of a project that could last 25 years.

And, though the Supreme Court Justice Marcy Friedman in December refrained from issuing a stay on construction, the dispute continues, as groups in the coalition BrooklynSpeaks forcefully questioned the ESDC's findings that a 25-year buildout would have no adverse impacts beyond those already studied.

A hearing will be held on Tuesday, March 15, at 2:30 pm in Manhattan Supreme Court before Friedman, at 60 Centre Street, IAS MOTION Part 57, Room 335.

Expert affidavits

I'll have an analysis of the overall dispute later in the week, but consider the press release circulated yesterday by BrooklynSpeaks, which cites three expert affidavits challenging the ESDC's claims.

In his affidavit, Ron Shiffman, professor of urban planning at Pratt Institute, argues that it's "an obvious omission" for the state to have bypassed city environmental review guidelines to offer an interim build year for projects whose duration is expected to be greater than ten years.

James Goldstein, Senior Fellow and Director of the Sustainable Communities program at Tellus Institute, a nonprofit research and policy organization in Boston, in his affidavit, points to the impact of delays in three projects, two in the Boston area, one in New London, CT. “The recent cases of Filene’s One Franklin development, Harvard’s Allston Initiative, and New London’s Fort Trumbull project all highlight the quantifiable and qualitative costs that arise in the course of unanticipated project delays. They invite a much more deliberate reconsideration of expectations about project costs and benefits once a delay occurs and, as in the case of One Franklin, demand a much more thorough analysis of the unanticipated impacts that inevitably arise from those delays.”

The state and Forest City Ratner, I'll note, have not revised their cost-benefit estimates.

Majora Carter, the former executive director of Sustainable South Bronx and the current President of the Majora Carter Group, in her affidavit, challenges the ESDC’s argument about the non-impact of 15 more years of construction: “This conclusion is not just counterintuitive. It reflects a national trend in land use policy that prioritizes the interests of private developers over the sustainability of vibrant communities."

March 7, 2011

On March 3, several BrooklynSpeaks sponsors seeking to reverse the Empire State Development Corporation’s (ESDC) 2009 approval of a plan extending construction of the Atlantic Yards project from ten to twenty-five years, filed affidavits with the court from leading authorities in urban planning and sustainable development. The affidavits by Ronald Shiffman of Pratt Institute, James Goldstein of Tellus Institute, and Majora Carter of the Majora Carter Group were submitted in support of BrooklynSpeaks’ supplemental petition challenging ESDC’s response to a November 2010 court decision ordering the agency to explain its rationale for failing to prepare a supplemental environmental impact statement (SEIS) at the time it approved the modified general project plan (MGPP).

“When it approved the 2009 MGPP, ESDC ignored the law, the facts, common sense and, most importantly, the opportunity to engage the community to help make Atlantic Yards work for Brooklyn,” said Gib Veconi of the Prospect Heights Neighborhood Development Council. “The statements of these experts show how ESDC was deficient in its approval of Forest City Ratner’s proposed changes to the construction schedule, and that ESDC failed to learn from either the failures or successes of other large urban redevelopment projects.”
...

“Even though construction on the Barclays Center arena is underway, it’s not too late for the public to have a voice in the future of Atlantic Yards,” said Michelle de la Uz, executive director of the Fifth Avenue Committee. “Since ESDC and Forest City have so far refused to engage the local community or its elected representatives in a meaningful way, we have no choice but to ask the Court for a reversal of the 2009 MGPP and to halt further construction. Appropriate study of the impacts of 25 years of construction must be made.”

March 6, 2011

Is the Downtown Brooklyn Partnership still under investigation for improper lobbying? Unclear

Atlantic Yards Report

Laws only have meaning if miscreants are prosecuted. Why does it seem that the Downtown Brooklyn Partnership is getting a pass?

Is new state Attorney General Eric Schneiderman continuing an investigation of the Downtown Brooklyn Partnership's (DBP) lobbying? I couldn't get an answer when I inquired a couple of weeks back, but the DBP, aiming to insert itself into the last Atlantic Yards lawsuit, surely has lobbied state agencies regarding Atlantic Yards.

As I wrote 10/27/10, in Cuomo has apparently put on back burner investigations of Willets Point, Downtown Brooklyn Partnership lobbying, a New York Times article that day about Attorney General Andrew Cuomo, about to win election as Governor, noted:

For example, an investigation into whether the administration of Mayor Michael R. Bloomberg and some public officials violated lobbying laws in their redevelopment efforts is still unresolved after two years. (Mr. Bloomberg last month endorsed Mr. Cuomo’s campaign for governor.)

That referred to Cuomo's investigation of questionable lobbying by the Flushing-Willets Point-Corona Local Development Corporation (FWPCLDC), paid by the city to lobby for the Willets Point urban renewal plan before the City.

What about the DBP?

Previously, I suggested that the DBP, also funded in part by the city, had similarly tried to "influence legislation by propaganda or otherwise." I cited testimony by DBP representatives before the Metropolitan Transportation Authority and the Empire State Development Corporation.

On 10/29/09, the Times reported that the investigation had in fact gone beyond the FWPCLDC:

That investigation has expanded into the activities of the Downtown Brooklyn Partnership, which the city helped create in 2006 to help push through development plans following a broad rezoning of the area.

So, is that investigation still going on? Has it been dismissed? To what extent does/did it involve the Partnership's work lobbying for Atlantic Yards?

Last year, I asked the DBP, which told me to ask the Attorney General's office. I didn't get an answer from either administration, last year and last month.

March 3, 2011

Here's the latest addition to the list of great works of Atlantic Yards fiction.

"Atlantic Yards will be many things to many people," Forest City Ratner has long stated (as in screenshot from original AY web site, right, complete with misleading fisheye photo).

For the Provost of Long Island University's Brooklyn campus, the project appears to be a mystical mirage, promising an astonishing array of indispensable benefits.

It should be a teachable moment: the question of whether and how Atlantic Yards could provide such claimed benefits could occupy a good number of academic researchers.

Instead, it's a moment for (take your pick) irresponsibility, delusion, or power politics.

In a sworn affidavit, LIU's Gale Stevens Haynes (see p. 47 of the first document embedded below) simply takes the most optimistic scenario on faith.

She claims, without evidence, that students and faculty are "very supportive" of the project, and suggests that the project would offer "housing, jobs, and transit and infrastructure improvements to our students."

And she praises Forest City Ratner for being "genuine in its concern and efforts to understand and address the needs of this community."

Apparenly, CEO Bruce Ratner, who served on the university board's "Buildings and Grounds Committee, offering his expertise to the construction of the Zeckendorf Health Science Center and the Wellness, Recreation & Athletic Center," has won some friends.

Court case pending

Haynes's affidavit, as well as two others, accompany a motion from the Downtown Brooklyn Partnership to file a "friend of the court" brief in the last lingering Atlantic Yards court case, regarding the impacts of and the need for the Empire State Development Corporation (ESDC) to study a delayed timetable.

It should go to oral argument March 15 at 2:30 pm, as should a linked case regarding a request for legal fees). I'll look at the broader legal arguments in depth next week.

February 1, 2011

DDDB in court Thursday, seeking sanctions from ESDC/FCR and their lawyers for withholding Development Agreement

Atlantic Yards Report

Remember how, last March, Supreme Court Justice Marcy Friedman criticized the Empire State Development Corporation's (ESDC) “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally”?

And in a decision last November, she criticized the ESDC for withholding the Development Agreement, which gives a 25-year outside date to build the project?

The ESDC, in response, issued findings that it wouldn't make a difference in terms of impact. The two coalitions bringing suit, Develop Don't Destroy Brooklyn and BrooklynSpeaks, may be in court later this month challenging those findings.

Legal costs sought, hearing Thursday

Before then, DDDB, but not BrooklynSpeaks, has filed a motion to require the ESDC and FCR, and their lawyers, "to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year."
...

The fact that BrooklynSpeaks has not joined the motion suggests that such a tactic, which is on the aggressive side, might not sit well with the judge.

Then again, should the ESDC and FCR get away with the failure to disclose the Development Agreement?

It seems that, so far, they have been unscathed and the longer the case lingers, the less likely a judge would be willing to intervene in construction of the arena and ancillary facilities.
...

The Development Agreement, signed 12/23/09, had clearly been delayed. Part of the master closing documents, it was not released until 1/25/10, was six days after a hearing in a case challenging the timetable was heard before Friedman.

It was also about three weeks after the ESDC told me the documents would be made available.

January 31, 2011

Feb 3: DDDB In Court Seeking Sanctions and Legal Fees From ESDC

Develop Don't Destroy Brooklyn

On Thursday, February 3, at 9:30 a.m., New York State Supreme Court Justice Marcy Friedman will hear argument on the motion of Develop Don't Destroy Brooklyn to require the Empire State Development Corporation and Forest City Ratner, and their lawyers, to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year.

We strongly encourage you, as a DDDB supporter, to attend the hearing on Thursday. A grassroots organization such as ours should not be forced to suffer financial consequences because of the misconduct of a state agency.
...

December 23, 2010

The Daily Bulletin Year in Review

Brooklyn Daily Eagle

Atlantic Yards makes a few appearances in the Eagle's round-up of "top legal, judicial and courthouse news stories of 2010."

JANUARY

• Homeless people in Brooklyn attempt to arrest developer Bruce Ratner related to the use of eminent domain to take land for the multibillion-dollar Atlantic Yards project that Ratner is constructing for the Brooklyn/New Jersey Nets NBA basketball team.
...

MARCH

• New York state takes ownership of the land inside the footprint of Atlantic Yards via eminent domain, after Justice Abraham Gerges finalizes a Court of Appeals ruling that the taking is constitutional. Several days later, several floors of the courthouse are evacuated (see photo) as Justice Gerges is sent an envelope filled with suspicious white powder, later to be found inert.
...

NOVEMBER

• In an unexpected decision regarding the Atlantic Yards project, a Manhattan judge rules that the discrepancies between the project’s timelines warrant the granting of a motion to reargue the case concerning the environmental impact statement. Though the project is not expected to stop construction, it is a rare victory for Atlantic Yards opponents and allows the continuance of many years of litigation.

December 22, 2010

No stay on construction, as petitioners in timetable case agree to withdraw motion in light of ESDC's report; will file new motion next month

Atlantic Yards Report

There will be no stay on Atlantic Yards construction for now and, given the momentum of time, the bar grows higher.

Two community coalitions sought a stay on some if not all Atlantic Yards construction because of the Empire State Development Corporation's (ESDC) failure to analyze the impact of a 25-year construction schedule.

But last week, the ESDC issued findings that no Supplemental Environmental Impact Statement (SEIS) is necessary and, while petitioners Develop Don't Destroy Brooklyn and BrooklynSpeaks consider that analysis vastly inadequate, it was too soon to argue that in court.

So, in a very brief hearing today before state Supreme Court Justice Marcy Friedman in New York County Supreme Court, the parties--the petitioners as well as the defendants, the ESDC and Forest City Ratner--agreed that the request for a stay would be withdrawn.

"They acted last week," BrooklynSpeaks attorney Al Butzel said of the ESDC decision, "and there's a presumption [on the part of the court] that they acted legitimately, which changed the balance." BrooklynSpeaks and DDDB disagree and will argue that next month.

Next phases

As part of the stipulation, the petitioners have until January 18 to file a supplementary petition arguing that the ESDC's analysis is inadequate--and to bring another request for an injunction. The could lead to another oral argument in the case in February.

Construction at Atlantic Yards will be allowed to continue after a deal was struck in court today by both sides of a lawsuit challenging development of the 22-acre Prospect Heights plot.

Calling it a "legal reality," representatives for the petitioners withdrew a motion to stop construction, but they continued to criticize how the Empire State Development Corporation, the state agency overseeing development, has handled the process.

"My view is the ESDC is responding in a way that misses the major concern, which is how 25 years of construction will affect people living in the neighborhood." said Al Butzel, attorney for BrooklynSpeaks, one of the community groups that is petitioning the development.

Atlantic Yards Stopped?

The Huffington Post
by Steve Ettlinger

Longstanding opponents Develop Don't Destroy Brooklyn and Brooklyn Speaks got a favorable response last month and will have a hearing tomorrow, Dec. 22 (State Supreme Court Justice Marcy Friedman, 60 Centre Street, IAS Motion Part 57, Room 335). At issue is a motion for a stay on the construction of Forest City Ratner's Atlantic Yards development. The plaintiffs charge collusion to deceive the court on an environmental impact statement. It appears that this is clearly the case. This is more than what stopped the infamous Westway project years ago.

How, you might wonder, does Bruce Ratner's mega-development inspire such sustained assault? Let's see some basics.

Click through to read Ettlinger's cogent summary of why NoLandGrab is still covering stories like Ettlinger's.

New York’s High Court Finally Gets Something Right

Reason Hit & Run
by Damon W. Root

It’s been an abysmal few years at New York’s Court of Appeals. First, the Empire State’s highest court voted to rubber stamp the despicable Atlantic Yards land grab, thereby allowing corporate welfare recipient Bruce Ratner (and his ugly allies) to profit at the expense of homeowner Daniel Goldstein, the fine folks at Freddy’s Bar, and other Brooklyn property owners and residents. Then the Court of Appeals allowed New York state to use eminent domain on behalf of—and in collusion with—Columbia University, thereby privileging the elite private institution at the expense of family business owner Nick Sprayregen. So it’s a strange day indeed to find good news coming out of that flawed judicial body. But as the Associated Press reports, the Court of Appeals just got one right:

Slices, hooks and other errant shots are a common hazard on the links and a golfer can't expect to get a warning shout of "Fore!" every time a ball comes his way, New York's top court ruled Tuesday in dismissing a personal injury lawsuit.

Atlantic Yards Report Round-Up: DDDB and BrooklynSpeaks vs. ESDC

In a legal affirmation (embedded below) in the case regarding the Atlantic Yards timetable, Jeff Baker, attorney for Develop Don't Destroy Brooklyn, takes aim at the Empire State Development Corporation's (ESDC) board meeting last Thursday, saying the ESDC denied the public access to documents and conducted an illegal meeting.

Baker states:

Nevertheless, it is important for the Court to understand the extent of the deliberations by the ESDC Board of Directors to understand the cursory review they conducted and recognize that instead of customary deference, ESDC's actions should generate skepticism and the Court should grant the stay pending a final review of ESDC's compliance with SEQRA [State Environmental Quality Review Act].

Where's the report?

Anticipating that the ESDC would prepare a report complying with Supreme Court Justice Marcy Friedman's ruling and thus indicating that a 25-year project buildout would not be unduly burdensome, Baker sought such documents via a Freedom of Information law Request on November 29 by fax and regular mail.

On December 14, he received a response dated December 6 and postmarked December 9.

Immediately, on December 14, Baker demanded copies of the documents that would be presented to the ESDC board on December 16, to afford meaningful comment. He got no response.

In the courtroom argument tomorrow over the request in a stay in Atlantic Yards construction and a re-evaluation of potential project impacts over 25 years, the battle seems to be this:

Can charges of bad procedure and dereliction of duty overcome the facts of an official document in hand and ongoing construction--construction that developer Forest City Ratner thinks requires a $100 million bond (well-nigh impossible for community groups) to pause?

The hearing will be at noon in Manhattan Supreme Court before state Supreme Court Justice Marcy Friedman, at 60 Centre Street, IAS MOTION Part 57, Room 335. (I will reconfirm and update the location by tomorrow.)

Friedman made a preliminary ruling November 9 that the Empire State Development Corporation (ESDC) make "findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement [SEIS] is required or warranted."

(The Development Agreement, which has a 25-year deadline, was released in January, months after the ten-year date was approved in the Modified General Project Plan, or MGPP, in September 2009.)

The ESDC responded with a flurry of arguments, notably that the arena is already well in progress, and that the 25-year outside date for project construction was long ago disclosed. On December 16, it issued findings that an SEIS is not necessary.

The findings were criticized by the BrooklynSpeaks coalition as obfuscatory and evasive. The meeting, according to an attorney for Develop Don't Destroy Brooklyn (DDDB), included an illegal executive session and denied the public the opportunity to comment on the findings.

Given that judges are supposed to defer to administrative agencies, the petitioners face a high bar--though one they're trying forcefully to overcome.

According to an affidavit from Forest City Ratner executive MaryAnne Gilmartin, arguing against any stay in construction, work is carefully timed so the arena can be finished by the summer of 2012 so it then be "commissioned" to open for the basketball season in October 2012.

However, there are apparently some delays in the schedule separate from any potential delays caused by litigation, as consultants report, detailed below.

It's also unclear when an arena not-yet-commissioned for basketball could open before the season to accommodate concerts (such as for Jay-Z) and other events, though presumably such events are planned and basketball is the most complicated to stage.

How many construction workers will be working on the Atlantic Yards site?

According to an affidavit (p. 244 of the document below) by Forest City Ratner executive MaryAnne Gilmartin that's part of the case challenging the Atlantic Yards timetable, the Number of workers will rise to about 600 or more when construction activities reach their peak:

Under the current schedule for building the arena, the census of approximately 120 union workers who are actually employed at the site is expected to increase dramatically, and will rise to about 600 or more when construction activities reach their peak. And there are hundreds of other workers now employed for the Project off-site.

Previous estimates

That's far fewer than the Empire State Development Corporation (ESDC) predicted in 2006 and again just last year.

The Technical Memorandum issued in June 2009 by the ESDC offers quarter-by-quarter construction jobs estimates over an elapsed time of 13 years, as shown below.

The peak, when the entire arena block was supposed to be in construction, was 3710, according to the Final Environmental Impact Statement, or FEIS.

December 15, 2010

ESDC response in timetable case: no stay needed, since arena's on its way, and 25-year outside date was known (but was 10-year buildout likely?)

Atlantic Yards Report

You wouldn't expect the Empire State Development Corporation (ESDC) to roll over, and the agency has responded to a request for a stay of Atlantic Yards construction with a flurry of arguments, notably that the arena is already well in progress, and that the 25-year outside date for project construction was long ago disclosed.

Supreme Court Justice Marcy Friedman, in her November 9 ruling on the Atlantic Yards timetable in favor of two community coalitions, did not resolve the issue. (The ruling came after an unusual reargument of a case that was decided March 10.)

Rather, she remanded the proceedings "to ESDC for findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement [SEIS] is required or warranted."

ESDC says no SEIS is necessary, and that the Development Agreement's not so meaningful. ESDC staffers have been working on the required analysis, and it's likely that the report will be approved by the ESDC's directors at a meeting tomorrow.

The ESDC's legal response, embedded at bottom, will be followed by reply motions from the two coalitions, led by Develop Don't Destroy Brooklyn and BrooklynSpeaks, and then oral argument before Friedman at noon on December 22.

December 13, 2010

Nick Sprayregen knew the chances were slim that the Supreme Court would hear his case against the state and, by extension Columbia University, yet still, the owner of Tuck-It-Away self-storage held out hope.

"It was a shocking decision, even with the chance of the court taking the case being one percent," Sprayregen told The Observer by phone today. He was referring to the odds that all cases face in being heard by the court, though he believed his had a good chance, both on merit and import, given the particulars of his suit and the dearth of opinions from the high court since it decided the landmark Kelo case five years ago, which basically rewrote the rules around eminent domain.

"I though we've put together, in terms of facts, about the strongest case anyone could," Sprayregen continued. "What the state and Columbia have done to collude on this is horrifying. We really thought they'd take a look at this. It strikes fear in me for others about how anyone else could put together a stronger case. We spent six years on this. How anyone else will mount a stronger challenge to eminent domain, I don't know."

Supreme Court refuses to hear appeal in Columbia eminent domain case

The effort to get the U.S. Supreme Court to hear an appeal on the eminent domain ruling in the Columbia University expansion has been denied, without comment.

Thus the court passes for now on the opportunity to clarify the meaning and legacy of its controversial 5-4 Kelo vs. New London decision in 2005.

While the federal appellate court hearing an appeal in the Atlantic Yards litigation interpreted Kelo quite narrowly, denying the challenge, courts in other states have used language in Kelo to more closely examine the actions of governmental agencies pursuing eminent domain.

The Supreme Court also passes on an opportunity to pronounce on eminent domain law as practiced in New York State, seen as an outlier among states, given that all challenges start in the state's appellate division, with no opportunity for testimony under oath, further evidence-gathering, or cross-examination.

Columbia University can move ahead with plans for a $6.3 billion expansion of its Manhattan campus after the U.S. Supreme Court rejected an appeal by neighboring businesses whose property may be taken over by eminent domain.

The justices today refused to question findings by a state development agency, Empire State Development Corp., that the area is blighted and that the Columbia expansion has a legitimate public purpose. The New York Court of Appeals, the state’s highest court, upheld the plan in June.

December 11, 2010

At a Forest City Enterprises (FCE) quarterly earnings conference call today with investment analysts, company representative indicated that the Empire State Development Corporation (ESDC) does not plan to appeal Supreme Court Justice Marcy Friedman's 11/9/10 ruling that it had failed to consider the impact of a 25-year project buildout but instead would deliver a document that would make the problem go away.

(There were no questions about EB-5 financing.)

About the lawsuit

One analyst asked about the remaining Atlantic Yards lawsuit that "cropped up recently."

Joanne Minieri, President and COO of subsidiary Forest City Ratner, responded, "Right now, the opponents filed for a stay of the construction until the state complies with the judge's order to do a further study and to make new findings relating to the project buildout timeline."

"The state is complying with that order right now and work is well under way," she continued. "And, towards the end of the month, papers are due and a hearing is scheduled. But it's FC's, as well as the state's intention to comply with the order and do the study in connection with the timeline and the buildout. So, by the end of the month, there'll be a court hearing regarding this particular lawsuit."

"And no stay of construction in the meantime?" came the follow-up question.

"Correct," responded Minieri.

A hearing is scheduled for December 22. While Minieri did not characterize the study at hand, presumably the ESDC will deliver a document that does not delay the project or give project opponents any more ammunition.

AY timeline up to them

In an unintentional nod to that timetable issue, David LaRue, Chief Operating Officer of parent FCE at another juncture in the call indicated that the developer plans to move forward on Atlantic Yards--but only when the time is right.

"We're heavily invested in Atlantic Yards," he said. "We fully believe in the future of that opportunity, as a value-creating mechanism for us. The example of [FCR's] 80 DeKalb opening and leasing up in nine months to where I think it's 97 percent leased now... is just an indication of the strength and depth of that [Brooklyn] market. So, [CFO] Bob [O'Brien] mentioned earlier, we're going to look, I guess not offensively, but at the right time to develop those assets and take advantage of the entitlement we have."

In other words, as FCE said in November 2008, "We control the pace."

Click on the link to read how Forest City Ratner is trying to find more sponsorships for the new Nets arena and how unloading the Nets has helped the bottom line.

December 8, 2010

In effort to get Supreme Court to hear Columbia eminent domain case, AY precedent and New York practices seen as outliers favoring condemnors

Atlantic Yards Report

The Columbia University expansion case should reach a reckoning this week at the U.S. Supreme Court, which, if in the unlikely case it accepts the appeal, could place a check on eminent domain as practiced in New York State.

As I wrote in September, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Tuck-It-Away owner Nick Sprayregen and the Kaur/Singh family are trying to get to the Supreme Court.

On his Inverse Condemnation blog, land use attorney Robert Thomas has posted the entire set of briefs in the petition for certiorari (Tuck-It-Away, Inc. v. New York State Urban Dev. Corp.) at the United States Supreme Court.

Will cert be granted?

The justices will meet December 10 to consider a number of cases and are expected to announce December 13 which cases they will accept (aka "grant certiorari").

It's always a long shot to get a case to the U.S. Supreme Court. Plaintiffs in the federal Atlantic Yards eminent domain case were rejected in June 2008, though one justice, the conservative Samuel Alito stated that he would've granted the petition.

As I wrote at the time, a decision to reject does not mean that the cases below were decided correctly, just that the appeal didn't present enough issues of law--conflicts in the interpretation of the Supreme Court's highly contested 6/23/05 Kelo v. New London decision--to merit review.

However, with some two-and-a-half years for additional cases that seemingly clash with Kelo to emerge, the petitioners in the Columbia case have a somewhat better shot.

December 1, 2010

Lawsuit Tries to Slow "New Domino" Development

Gothamist
by Garth Johnston

Crying poor environmental review seems to be the hot way to try and stop Brooklyn developments of late. Just as Develop Don't Destory Brooklyn is attempting to slow the Atlantic Yards project because of misrepresentations in its enviromental impact statement another group of Brooklynites is using a similar tactic to try and halt the massive development planned for the old Domino Sugar refinery (which got City Council approval back in June after much community opposition).

Atlantic Yards – war seems over yet legal battle continues

Meadowlands Matters
by John Brennan

The milestone of steel recently being erected at the site of the Barclays Center Nets basketball arena in Brooklyn sure makes it feel as if the multi-year legal Atlantic Yards battle must be over for good. Even ‘last holdout’ Daniel Goldstein finally took a buyout, and his building has been knocked down.

So what will New York State officials and Atlantic Yards opponents be doing on Dec. 22? Not giving each other Christmas gifts, that’s for sure. Instead, they have a tentative meeting with Supreme Court Justice Marcy Friedman regarding a possible halt to construction until state officials get their environmental impact statement house in order. That filing was made on Thanksgiving Eve.

This comes as a result of a Friedman ruling three weeks ago that was a basket for Nets owners but not quite a slam dunk. Friedman accepted the possibility that opponents are right to say that since a 10-year buildout plan has been changed to 25 years, maybe new environmental analysis is required. But Friedman didn’t stop the Nets from continuing their feverish work at the site designed to have the building finished in less than two years from now.

So what’s the point of the meeting?

Good question.

Opponents are convinced that the Empire State Development Corp. state agency and the Nets owners are complete allies, to the point where state officials will do anything to make the project happen. The project was in peril in 2009 because a federal tax exemption on construction bonds for stadiums and arenas – one enjoyed by the Mets and Yankees, for instance - was expiring at the end of the year.

The developer agreement was signed with days to spare, and the money was raised – but not coincidentally, these opponents claim, the details of the deal weren’t revealed until Jan. 2010. Friedman didn’t even address the issue in her key March 2010 ruling that paved the way for site work to pick up in earnest. In her ruling in early November, Friedman seemed annoyed with state officials for the lack of transparency; she may have been embarrassed to have ignored complaints last spring by these opponents.

November 30, 2010

A must-read from Norman Oder on yesterday's request by community groups for a stay on all Atlantic Yards construction.

Maybe the Barclays Center arena should never have gotten started.

Maybe the arena construction is proceeding thanks only to the "malfeasance" of the Empire State Development Corporation (ESDC) and developer Forest City Ratner (FCR) in withholding the Atlantic Yards Development Agreement until after a crucial court argument in January.

Those are the messages of a blistering legal motion filed by the attorney for Develop Don't Destroy Brooklyn and allied groups, urging state Supreme Court Justice Marcy Friedman to follow up her November 9 ruling on the project timetable and stay construction on the entire project.

Friedman, partly reversing a March 10 decision that endorsed the ESDC's claim that a ten-year buildout of the project was reasonable (despite the Metropolitan Transportation Authority's agreement to allow 22 years to sell FCR Vanderbilt Yard development rights), on November 8 declared that the ESDC had failed to address the impact of the Development Agreement, which it had kept under wraps and which allows 25 years for project construction.

Friedman remanded the proceedings "to ESDC for findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement is required or warranted."

Why a stay is needed

Leaving the timetable to the ESDC, however, is not what the petitioners want.

(The parties met this morning with Friedman to establish a hearing schedule in the case; an argument on the motion for a stay, has been scheduled for noon on December 22, though that date is subject to change)

Argues DDDB attorney Jeff Baker in an Affirmation (below), a stay of all construction is needed to maintain the status quo, not just to prevent further harm to the environment, "but to assure that ESDC makes an honest appraisal of the potential environmental impacts of the project and seriously considers the consequences of a 25-year construction schedule."

Baker argues that, had the Development Agreement (referred to as the MDA, or Master Development Agreement), been presented to the court in a timely manner, and had the ESDC and FCR been truthful to the court, the project would not have gone forward without a new evaluation of environmental impact.

And that would have delayed project approval beyond the end-of-2009 deadline to get crucial tax-exempt bonds issued.

“Put simply, the ESDC colluded with Forest City Ratner to deceive the Court. Unless and until the ESDC follows the Court order, any work at the project site would be in violation of state environmental law and an affront to the community that would have to live with Ratner’s developer’s blight for decades,” said DDDB legal director Candace Carponter in a statement.

BrooklynSpeaks, the coalition of groups in a companion case, also filed for a stay.

In a last-minute attempt to stop construction at Atlantic Yards, and in connection to some of the last litigation remaining in the courts on the topic, a Brooklyn community group announced Monday that it has filed a motion to halt work on the multibillion dollar project in Prospect Heights.

The motion filed in Manhattan Supreme Court last week asks a judge to order a halt to construction at Atlantic Yards, where an NBA basketball arena for the New Jersey/Brooklyn Nets has begun to be built. The motion, which was filed by community groups including Develop Don’t Destroy Brooklyn (DDDB) and BrooklynSpeaks, is in response to an unusual, but possibly meaningless, legal victory that was achieved earlier in the month.

After years of losing litigation battles and many months after a judge ruled against petitioners’ claims that the massive Atlantic Yards project would take much longer than 10 years, a judge now seems to agree and granted a motion to reargue. The next court date is set for Dec. 22.

NoLandGrab: "Possibly meaningless?" One could say the same about ESDC's prior legal victories if Judge Friedman halts construction.

Current Work on Project Is Illegal Under Court Ruling and State Environmental Law

Court Argument Scheduled for December 22

On Wednesday, November 24, twenty community organizations led by Develop Don't Destroy Brooklyn (DDDB) filed a motion with New York State Supreme Court seeking to halt all construction at developer Forest City Ratner's Atlantic Yards project site.

An argument on the motion for a stay, in front of State Supreme Court Justice Marcy Friedman, has been scheduled for noon on December 22nd (that date is subject to change).

The motion for a stay follows the November 9 decision from Justice Friedman finding that the Empire State Development Corporation (ESDC) lacked a rational basis for assuming that Atlantic Yards project would be completed in ten years when the agency approved the project's 2009 Modified General Project Plan (MGPP). Specifically the ESDC hid a key development agreement from the court.

Justice Friedman ordered the ESDC to reconsider the need for a supplemental environmental impact statement based on the 25-year construction schedule provided for in the Development Agreement between ESDC and Forest City Ratner. ESDC had analyzed Atlantic Yards as a 10-year project and repeated this unsupported claim to the court. The Court's order requires a new analysis by the ESDC. Until and unless the ESDC complies with the Court order by undertaking a new analysis of the project's timetable and impacts—with a rational basis—continued work on the project would be illegal under state law.

In the stay motion papers, DDDB attorney Jeffrey S. Baker states that all construction work must stop until ESDC complies with the Court order, to allow work to continue would be "rewarding FCR and ESDC for their malfeasance."

The papers also state that only because Ratner and the ESDC "colluded in their misrepresentations to the Court" could arena construction begin. And that "ESDC failed in its public obligation to evaluate the Project honestly in the context of its known schedule for completion." And that Forest City Ratner, "motivated by profit, used its influence with ESDC to avoid meaningful review, although it never intended to complete the project within the supposed ten-year timeframe and, to the contrary, was actively negotiating contracts providing far longer timeframes."

A stay of all construction is needed to maintain the status quo, not just to prevent further harm to the environment but DDDB argues, "to assure that ESDC makes an honest appraisal of the potential environmental impacts of the project and seriously considers the consequences of a 25-year construction schedule."

One of the key consequences and impacts of a 25-year construction schedule is a paved 1,100 car "interim" surface parking lot taking up much of the second phase of the project site. The ESDC has yet to study and disclose the impacts of such a massive parking lot.

"Put simply, the ESDC colluded with Forest City Ratner to deceive the Court. Unless and until the ESDC follows the Court order, any work at the project site would be in violation of state environmental law and an affront to the community that would have to live with Ratner's developer's blight for decades," said DDDB legal director Candace Carponter.

PRESS RELEASE: BrooklynSpeaks sponsors file for stay of construction at Atlantic Yards site

On Wednesday, November 24, several BrooklynSpeaks sponsor organizations filed a motion with New York State Supreme Court seeking to halt construction activities at the Atlantic Yards site. The motion comes after a November 9 decision from Justice Marcy Friedman finding that the Empire State Development Corporation (ESDC) lacked a rational basis for assuming that Atlantic Yards project would be completed in ten years when the agency approved the project’s 2009 Modified General Project Plan (MGPP). Justice Friedman ordered the ESDC to reconsider the need for a supplemental environmental impact statement based on the schedule provisions of the Development Agreement between ESDC and Forest City Ratner Companies (FCRC). That Agreement was made public only after a January 2010 court hearing during which the ESDC misrepresented its ability under the Development Agreement to ensure Atlantic Yards would be completed within ten years.

BrooklynSpeaks’ motion seeks to stay construction until ESDC has responded to the Court’s order. “Because the ESDC approved the 2009 MGPP without a reasoned basis for assuming Atlantic Yards would be complete in ten years, the agency violated New York State environmental law. As such, the work proceeding at the site now is underway illegally,” said Al Butzel, attorney for the BrooklynSpeaks petitioners. “ESDC and FCRC had a responsibility to disclose the true extent of the renegotiated construction schedule. They should not be rewarded and allowed to continue as if they had complied with the law.”

“If nothing happens, FCRC will soon begin to raze buildings, grade and pave an entire city block in Prospect Heights to create 1,100 parking spaces for arena events,” said Gib Veconi of the Prospect Heights Neighborhood Development Council. “Although they say it’s an ‘interim’ parking lot, under the MGPP, it could stay that way for up to 25 years. The State needs to disclose the noise, traffic, and air quality impacts of that likely scenario before moving forward.”

“The difference between 10 and 25 years is a long time to wait for affordable housing,” added Deb Howard, Executive Director of the Pratt Area Community Council. “The Governor and the Governor-elect can no longer ignore the fact that a State authority, appointed by the executive, has misrepresented a major development project to the Court and to the people of New York State. The ESDC has abdicated its obligations to the public purse and the public interest. Now it’s time for the Governor to put the interests of the people above those of a powerful real estate developer and commit to reform of Atlantic Yards governance.”

November 10, 2010

Atlantic Yards: Judge Slams State Development Agency for "Failure of Transparency"

The Huffington Post
by Norman Oder

In today's New York Times, the Arts section features a long article on a play with music that dramatizes the Atlantic Yards development controversy in Brooklyn, another work from the impressive investigative theater company The Civilians.

Meanwhile, the Times ignores a long-awaited ruling in the last remaining Atlantic Yards lawsuit, which laid bare just how the state cut corners to favor developer Forest City Ratner, allowing a 25-year buildout while insisting the arena-plus-towers project could get done--and bring benefits like new tax revenue and affordable housing--in just ten years.

To the surprise of many, state Supreme Court Justice Marcy Friedman not only ruled for Develop Don't Destroy Brooklyn and other project opponents but also slammed the Empire State Development Corporation (ESDC), the state's economic development agency, for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.

The importance of the ruling

No, the decision won't stop construction of the Barclays Center arena, which is already under way and slated to be finished by the fall of 2012. It likely won't impact construction on the arena block, as the Development Agreement the state signed with Forest City Ratner contains specific penalties regarding delays in the first three towers.

However, either the ESDC will have to file an appeal--and be forced to defend some very questionable behavior--or issue more findings justifying its analysis of the entire 16-tower project.

On the Huffington Post Norman Oder explains the significance of yesterday's Atlantic Yards court ruling against the Empire State Development Corporation. The ruling ensures, once and for all, that history will not forget what and how it all went down in Prospect Heights, Brooklyn under the watch of Bloomberg, Pataki, Spitzer and Paterson.

Judge Rebukes State Agency Over Atlantic Yards Timetable

City Room
by Andy Newman

It comes too late to halt construction, but a judge has issued a stinging rebuke to the state agency overseeing the $5 billion Atlantic Yards project in Brooklyn, finding that it made “totally incomplete representations” in legal papers about how long it would take the project to get built, in “what appears to be yet another failure of transparency.”

On Tuesday, the judge, Marcy S. Friedman of State Supreme Court in Brooklyn, ordered the agency, the Empire State Development Corporation, to justify its decision to require only a 10-year environmental impact statement. The agency’s own agreement with the developer, Forest City Ratner, allows 25 years for construction of the project, which includes a basketball arena, currently being built, and 16 residential and commercial towers. Forest City Ratner officials have acknowledged that the 10-year timetable was a best-case scenario.

Opponents of Forest City Ratner’s Atlantic Yards development celebrated a legal setback for the project yesterday, as a New York State Supreme Court judge ordered the Empire State Development Corporation to re-open the question of whether a further environmental review is needed.

Maybe there is hope for those opposed to Brooklyn's Atlantic Yards project after all. Or at the very least, some vindication.

Yesterday, State Supreme Court Justice Marcy Friedman ruled that the Empire State Development Corporation erred in producing a modified timetable for the project last year, when it finally won state approval, and thus violated the state's environmental review process.

The courts have criticized the project before, but none have ever ruled against it, arguing that it is the legislature and its constitutionally mandated authorities, such as the ESDC, whose responsibility is to determine right from wrong when it comes to eminent domain and the like. This time, though, Friedman found the fecklessness to be actionable.

"With today’s ruling it is more evident than ever that the new governor has a job to do with the Atlantic Yards debacle," Develop Don't Destroy Brooklyn co-founder (and former holdout) Daniel Goldstein told the New York Post. "The blight Ratner has created in Prospect Heights, Brooklyn can be fixed if Cuomo is willing to take the much-needed fresh look at Atlantic Yards that [yesterday’s] court ruling demands."

Gib Veconi of the Prospect Heights Neighborhood Development Council said, “The Atlantic Yards Modified General Project Plan (MGPP) varied so drastically from the plan initially approved by the ESDC in 2006 that it could not escape the notice of the Court, and the decision today has confirmed that the Empire State Development Corporation must disclose the impacts of the Atlantic Yards project it agreed to, not the one it wishes would be built.”

COUNCIL MEMBER LETITIA JAMES PRESS RELEASE: Victory At Last!

Congratulations to DDDB and Community on Ruling Against Atlantic Yards Development

State Supreme Court Justice Marcy S. Friedman issued a ruling today granting the motion by Develop Don't Destroy Brooklyn (DDDB), and other petitioners. The judge sided with DDDB and associated neighborhood groups stating that the Empire State Development Corporation (ESDC) did not properly consider the full 25-year schedule of the Atlantic Yards development project. The judge sent the case back to ESDC requiring a detailed, reasoned basis for its findings and support.

Justice Friedman criticized ESDC for the lack of transparency in its approval of Bruce Ratner’s Atlantic Yards project, highlighting that the environmental review process is meant to be an open process involving the public, as well as other interested agencies.

“The Court properly found that ESDC misrepresented the facts of the contracts and there were no requirements that FCRC complete the project,” said DDDB lead counsel Jeffrey S. Baker of the Albany, New York law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. “ESDC’s lack of transparency was not just with respect to its own deliberations, but extended to trying to hide material facts from the Court. We are very pleased that Justice Friedman did not tolerate that behavior.”

Council Member Letitia James said: “It’s time that Forest City Ratner Corporation sit down with the community and incorporate aspects of the UNITY plan into his project, which focuses on affordable housing and buildings that compliment the community. Unfortunately, the taking of homes and businesses by eminent domain in absence of proper findings has already happened. I hold my ground and continue my objection to this entire development, the process, the land grabbing, and the waste of public funds. In light of Justice Friedman’s ruling, it’s critical that Governor Elect Andrew Cuomo examine the overall plan for the Atlantic Yards project, and meet with the community. Lastly, congratulations to DDDB, Prospect Height Neighborhood Development Council, and the community for their perseverance and victory.”

Perhaps Judge Friedman should order Forest City Ratner to start dismantling their foundation.

During an Investor Day event today, with investors and investment analysts in attendance at the Arena Stage's Kreeger Theater in Washington, DC, Forest City Enterprises offered a confident update on its projects and its progress, and a notably less confident assessment of the court ruling yesterday regarding Atlantic Yards.

Chief Operating Officer David LaRue, who had to consult a recently-prepared script regarding the ruling, stated, "There is, just with regard to the Atlantic Yards project, while we're there, there was news that came out yesterday, we want to make sure we address it, immediately, what we know. Yesterday the state Supreme Court made a ruling that--Justice Friedman issued a ruling--which for the first time was in favor of the opponents of Atlantic Yards and against the EDC, the Empire State Development Corporation."

(Actually, in New York, the EDC is the New York City Economic Development Corporation, while the state agency is the ESDC.)

Tentative tone

"This is different--last spring she actually ruled in favor on this particular issue, which is the environmental impact study that was done," LaRue continued, in a tone far more tentative than in the rest of his presentation. "Uh, what's she's asked the EDC to do in this regard is to go back to reconsider the impact on the environmental study regarding an extended development period which we were able to negotiate, which gave up to 25 years for development of the project, versus a ten-year base plan that was used."

What he didn't tell the audience is that the judged slammed the ESDC for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.

At the Atlantic Yards arena groundbreaking in March, New York City Mayor Mike Bloomberg soothingly declared, "[N]obody's going to remember how long it took, they're only going to look and see that it was done."

The official line regarding yesterday's ruling by state Supreme Court Justice Marcy Friedman seems similar: "Nobody's going to remember how it got done, they're only going to look and see that it was done."

“Nothing was announced today that’s going to impact construction,” Jeff Linton, a spokesman for Forest City Enterprises, parent of Brooklyn developer Forest City Ratner, told Bloomberg Business Week.

An Empire State Development Corporation (ESDC) spokeswoman--who didn't respond to my queries--told the Brooklyn Paper that the agency was “reviewing today’s ruling, which does not enjoin construction taking place on the Atlantic Yards project.”

Why it's important

Well, it won't stop current construction, but it could impact future construction. And, despite the Brooklyn Paper headline (Yards foes win a big case that will not likely change a thing), the case will, at the very least, provoke the ESDC to issue more findings justifying its ten-year timetable.

That timetable is less and less defensible--and that could lead to additional lawsuits, possibly affecting Phase 2 of the project. The upshot: people can and will very much remember how it got done.

Also, despite attempts to downplay the ruling, it's news when a judge rebukes the ESDC for "what appears to be yet another failure of transparency" and "totally incomplete representations" in legal papers.

In other words, the agency in charge of economic development in the state behaves somewhat like a guy on Craigslist trying to rent you an apartment he doesn't quite own.

A state judge today ordered the Empire State Development Corp. to revisit its environmental review for Brooklyn’s Atlantic Yards project, saying the 10-year build-out plan it is working off of isn’t justified and that new findings are needed.
...

In today’s decision, Friedman also ripped ESDC for not being forthright and providing her with a copy of the Master Development Agreement.

Opponents of the multibillion-dollar Atlantic Yards project — part of which includes the Nets’ new arena planned for a 2012 opening — won a rare court victory Tuesday, when a state Supreme Court justice agreed to accept further arguments in a long-running court case.

Develop Don’t Destroy Brooklyn and other opponents have argued that the Empire State Development Corp. for months withheld from the court that the development agreement had been amended to allow a 25-year build-out for most of the project.

Supreme Court Judge Marcy Friedman agreed in the 21-page ruling, saying that the state agency must offer an explanation why a new environmental review — which could substantially stall the project — is not needed, even though the previous 10-year deadline is no longer in effect.
...

Develop Don’t Destroy official Candace Carpenter called on ESDC to “suspend all construction on the project” in light of the ruling.

In her opinion, Justice Marcy Friedman wrote that the Modified General Project Plan, which says Atlantic Yards developer Forest City Ratner Companies will need far longer to complete the Atlantic Yards development than was initially approved in 2006, raises "a substantial question as to whether ESDC's continuing use of the 10 year build-out has a rational basis."

A New York state court judge ordered Empire State Development Corp. to re-examine whether a further environmental review is needed for the Atlantic Yards project in Brooklyn that will include offices, housing and a sports arena.
...

“Nothing was announced today that’s going to impact construction,” Jeff Linton, a spokesman for Cleveland-based Forest City Enterprises, said in a phone interview.

The state agency overseeing the Atlantic Yards mega-development purposefully withheld information on the project’s timetable to avoid having to reexamine the project’s negative impacts, a judge ruled on Tuesday in what appears to be a meaningless victory for foes of Bruce Ratner’s project.
...

Still, opponents were glowing over their first major court victory in the seven-year saga to block Bruce Ratner’s 22-acre, 16-tower mini-city sprawling east from the intersection of Flatbush and Atlantic avenues.
...

“The record … lacks any expert opinion or analysis of the impact of a potential 25-year delay in completion of the project,” wrote Friedman in her ruling.

November 9, 2010

Court Slams NY State on Atlantic Yards, Rules For DDDB

While the impact of the Court's ruling is unclear, what is clear is that there is likely to be more legal action by Develop Don't Destroy Brooklyn which will impact the Atlantic Yards project. We are going to need your help:

Judge Rules in Favor of Develop Don’t Destroy!

Only The Blog Knows Brooklyn

Big News: State Supreme Court Justice Marcy S. Friedman issued a ruling today in favor of Develop Don’t Destroy Brooklyn (DDDB) and other neighborhood groups, criticizing the Empire State Development Corporation (ESDC) for “what appears to be yet another failure of transparency” in its approval of Bruce Ratner’s Atlantic Yards project.

Justice Friedman granted the motion by DDDB and the other petitioners for reargument of her March 10, 2010 position. She held that the December 2009 Master Development Agreement should have been provided to the Court and having now reviewed that agreement, Justice Friedman found that the ESDC did not properly consider the full 25-year schedule.

After more than 30 losses in federal and state courts, critics of the Atlantic Yards project have finally won a case, but the state court decision does NOT halt construction on Barclays Center and is unlikely to slow it down either.

NoLandGrab: "More than 30 losses?" Show us a list. Of course, NetsDaily being a Nets fan blog, it knows from losses.

DDDB PRESS RELEASE: DDDB Wins Atlantic Yards Lawsuit

Court Rejects NY State's Misrepresentations About Completion Of Atlantic Yards, Sending Project Back To Empire State Development Corp For Reconsideration

State Supreme Court Justice Marcy S. Friedman issued a ruling today in favor of Develop Don't Destroy Brooklyn (DDDB) and associated neighborhood groups, slamming the Empire State Development Corporation (ESDC) for "what appears to be yet another failure of transparency" in its approval of Bruce Ratner's Atlantic Yards project.

Justice Friedman granted the motion by DDDB and the other petitioners for reargument of her March 10, 2010 ruling. She held that the December 2009 Master Development Agreement should have been provided to the Court and having now reviewed that agreement, Justice Friedman found that the ESDC did not properly consider the full 25-year schedule. Justice Friedman has sent the case back to ESDC for reconsideration, requiring the ESDC to provide a "detailed, reasoned basis for [its] findings."

"We are thrilled with the Court's decision," said, Candace Carponter, Esq., chair of DDDB's Legal Committee. "It has laid bare the pattern of lies and deception by ESDC and Forest City Ratner that underlie this project. We have always contended that the project will take decades to complete, if ever and the supposed public benefits of affordable housing and open space would never happen. Instead we are faced with decades of developer created blight in an area that may never be redeveloped due to ESDC's and FCRC's malfeasance."

DDDB argued that ESDC had violated the State Environmental Quality Review Act (SEQRA) when it considered a 10-year time frame for completion of the project, despite contract documents which demonstrated a 25-year schedule. ESDC had argued that it would require Forest City Ratner Companies (FCRC) to use "commercially reasonable efforts" to complete the project by 2019. DDDB argued that the only contractual agreements between ESDC and FCRC had penalties and some guarantees for some of Phase I of the project, but there were essentially no guarantees for Phase II and it might never be built. Since most of the purported public benefits (affordable housing, open space, new school space) were included in Phase II, it affected the SEQRA determination.

In today's decision, Justice Friedman chastised ESDC for not being forthright to the Court and not providing her with a copy of the Master Development Agreement and for arguing at the January 2010 hearing that there were meaningful obligations in the development agreement, when they knew that was not case. Given the fact that ESDC misrepresented the facts to the Court and that the ESDC Board did not ever consider the 25-year schedule when it issued its SEQRA decision in September 2009, the Court has sent the matter back to ESDC to reconsider its decision.

Ms. Carponter continued, "Justice Friedman's decision puts the entire project in doubt. ESDC approved the project as an integrated development with a variety of alleged benefits. ESDC cannot proceed with just an arena or only with Phase I without considering the lasting effects of the resulting blight caused by FCRC. Such a truncated project is not what was contemplated or approved by New York State. We call upon ESDC to suspend all construction on this project which is so wasteful of public resources and consider a feasible and comprehensive development that is consistent with the surrounding area."

DDDB co-founder Daniel Goldstein said, "With today's ruling it is more evident than ever that the new Governor has a job to do with the Atlantic Yards debacle. The blight Ratner has created in Prospect Heights, Brooklyn can be fixed if Governor Cuomo is willing to take the much needed fresh look at Atlantic Yards that today's Court ruling demands."

"The Court properly found that ESDC misrepresented the facts of the contracts and there were no requirements that FCRC complete the project" said DDDB lead counsel Jeffrey S. Baker of the Albany, New York law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. "ESDC's lack of transparency was not just with respect to its own deliberations, but extended to trying to hide material facts from the Court. We are very pleased that Justice Friedman did not tolerate that behavior."

Today, New York State Supreme Court Justice Marcy Friedman found that the Empire State Development Corporation (ESDC) unreasonably failed to properly assess the impacts of twenty-five years of extended construction at the Atlantic Yards site in Brooklyn. Judge Friedman’s ruling was entered following a motion by BrooklynSpeaks petitioners to reargue an earlier decision by the Court in favor of ESDC and Forest City Ratner Companies (FCRC). The BrooklynSpeaks petitioners asked Judge Friedman to review the Development Agreements executed subsequent to the ESDC’s approval of the Modified General Project Plan but which were withheld from public disclosure until after oral argument on the petitioners' original motion.

In her opinion today, Judge Friedman echoed BrooklynSpeaks’ concern, stating “The Development Agreement has cast a completely different light on the Project build date. Its 25 year outside substantial completion date for Phase II and its disparate enforcement provisions for failure to meet Phase I and II deadlines, read together with the renegotiated MTA Agreement giving FCRC until 2030 to complete acquisition of the air rights necessary to construct 6 of the 11 Phase II buildings, raise a substantial question as to whether ESDC’s continuing use of the 10 year build-out has a rational basis.” The Court accordingly ordered ESDC to reassess its reliance on the 10-year build out schedule in failing to prepare a Supplemental Environmental Impact Statement for the 2009 MGPP.

“The BrooklynSpeaks sponsors hail the court’s decision as a victory for all of the communities who have been shut out of the Project’s decision-making process. It vindicates years of concerns expressed by the communities surrounding Atlantic Yards that the State of New York never properly assessed the impacts of this Project, and seems to have labored mightily to avoid doing so,” said Jo Anne Simon, Democratic Leader of Brooklyn’s 52nd District.

Said Gib Veconi of the Prospect Heights Neighborhood Development Council, “The Atlantic Yards Modified General Project Plan (MGPP) varied so drastically from the plan initially approved by the ESDC in 2006 that it could not escape the notice of the Court, and the decision today has confirmed that the Empire State Development Corporation must disclose the impacts of the Atlantic Yards project it agreed to, not the one it wishes would be built. Until ESDC provides an appropriate response, the petitioners will seek to enjoin so-called ‘interim’, but blighting, project features, such as the razing of existing buildings in the Phase II footprint to create giant surface parking lots.”

“We expect the Empire State Development Corporation (ESDC) to perform a full, serious, and unbiased environmental review based on conditions in the neighborhood at the time of announcement of the Atlantic Yards project, and considering the outside completion dates to which the agency is willing to agree,” said Michael Cairl, President of the Park Slope Civic Council. Added Howard Kolins, President of the Boerum Hill Association, “We further call on the Legislature and the Governor of the State of New York to implement oversight controls for this Project commensurate with its size and the amount of public subsidy it is to receive.”

Citing "what appears to be yet another failure of transparency" on the part of the Empire State Development Corporation (ESDC), a state Supreme Court justice today handed Atlantic Yards opponents and critics their first clear-cut victory.

Justice Marcy Friedman ruled (decision below) that, while the ESDC claimed that a ten-year buildout of the project was reasonable, it failed to address the impact of the Development Agreement, which it had kept under wraps and which allows 25 years before penalties kick in for the project as a whole.

What's the impact?

The impact of her ruling, however, may not fundamentally change anything. Friedman did not stay construction of the arena or associated infrastructure.

She granted the motions of the petitioners--groups associated with Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council--and remanded the proceedings "to ESDC for findings on the impact of the Development Agreement and of the renegotiated MTA agreement on its continued use of a 10 year build-out for the Project, and on whether a Supplemental Environmental Impact Statement is required or warranted."

Presumably, the ESDC will find a way to justify its decisions--despite the recent acknowledgment by Forest City Ratner that the ten-year buildout was a best-case scenario.

Then again, it may be tougher to make such justifications--thus opening up the possibility of more litigation.

Read on for Norman Oder's top-line analysis of this breaking story, which he'll be adding to as more reaction comes in.

October 14, 2010

New York Appellate Judge James Catterson: “there is no longer any judicial oversight of eminent domain proceedings”

Reason Hit & Run
by Damon Root

All of which brings us to yesterday’s unanimous appellate court ruling in Matter of Uptown Holdings v. City of New York. As befits a lower court, the judges consider themselves bound by the precedents set by the state’s highest court. What does that mean in practice? Here’s the entirety of Judge James Catterson’s depressing and all-too-accurate concurring opinion:

In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.

As I noted in a column last month, the victimized property owners in the Columbia University case have now asked the U.S. Supreme Court to review New York’s actions (the Court refused to hear the Atlantic Yards case in 2008). Judge Catterson’s opinion is yet more evidence why the Supreme Court needs to start paying attention to New York’s eminent domain abuse.

October 13, 2010

Justice Catterson, forced to defer to the condemnors, concludes that "there is no longer any judicial oversight of eminent domain proceedings"

Atlantic Yards Report

A law review article I co-authored this spring with Amy Lavine argues that judges have become too deferential to condemning agencies and don't examine eminent domain sufficiently:

The courts have repeatedly used the principle of legislative deference to pass on the difficult issues—such as whether an arena is really a public good, whether private developers should be able to dictate that public good, the meaning of “blight,” and when a project changes so much as to require reapproval.

A judge reinforces the argument

Yesterday (as per DDDB), Appellate Division Justice James Catterson let loose with a blistering coda to that argument, concurring reluctantly in a decision upholding eminent domain:

In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp., 13 NY3d 511 [the Atlantic Yards case] and Matter of Kaur v. New York State Urban Dev. Corp., 15 NY3d 235, [the Columbia University case] (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.

Catterson background

Catterson is noted for some forceful opinions in cases related to the two above.

September 27, 2010

As plaintiff Nick Sprayregen of Tuck-It-Away Storage pledged, he'd go to the U.S. Supreme Court to fight the state's pursuit of eminent domain in the Columbia University.

Now, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Sprayregen and the Kaur/Singh family that owns a gas station on the project site have filed their Petition for a Writ of Certiorari (below), the request for the court to hear the case.

It's always a long shot--fewer than 1% of petitions are granted--but this petition, authored by attorney Norman Siegel and a host of others, hammers home the state court's failure to address the guidelines seemingly set forth in Justice John Paul Stevens's majority opinion and Justice Anthony Kennedy's concurrence in the 2005 Kelo v. New London case, in which the court upheld eminent domain by a 5-4 margin.

Ignoring Kelo?

The petition states:

In sharp contrast to the situation in Kelo, in which a municipal agency adopted a “carefully considered” development plan which had no preselected private beneficiary, ESDC worked backwards, pre-ordaining Columbia as the beneficiary of its eminent domain power. Having settled on this, ESDC endorsed a plan, developed behind closed doors by Columbia itself, to transfer private property to Columbia in furtherance of the university’s expansion dreams. ESDC then collaborated with Columbia to devise after-the-fact traditional public purposes to justify the takings, and even allowed Columbia to create the very blight-like conditions that ESDC then proposed to remediate.

The use of eminent domain here was thus a fait accompli meant to circumvent any obstacles to the realization of Columbia’s private agenda. A two-judge plurality of New York's appellate court recognized that the takings were unconstitutional under Kelo, and a third judge joined the plurality to hold that the condemnation was invalid because ESDC had violated petitioners’ due process rights. New York's highest court, the Court of Appeals of New York (“Court of Appeals”) nonetheless reversed, upholding ESDC's actions in a 34-page decision that never once mentioned Kelo.

September 23, 2010

"Really no hope" for AY opponents? Well, not from Gerges, but...

Atlantic Yards Report

The headline on the Observer's summary of the two Atlantic Yards court decisions reported this morning is Really No Hope For Atlantic Yards Opponents.

While there wasn't much hope that Kings County Supreme Court Justice Abraham Gerges would seriously grapple with the changes in the project, there remains some hope that the other extant case, yet to be ruled on by New York County Supreme Court Justice Marcy Friedman, will yield... something.

Yes, it's a longshot to expect Friedman, who's still considering a reargument of a case challenging the project timeline, to order the Empire State Development Corporation (ESDC) to issue a Supplemental Environmental Impact Statement.

However, given her demeanor in court June 29, given that Friedman chastised the ESDC in her March ruling for a "deplorable lack of transparency," and given that she allowed a reargument, there's a good bet she'll be a bit tougher on the ESDC than was Gerges.

Really No Hope For Atlantic Yards Opponents

NY Observer
by Matt Chaban

There was something devilishly brilliant to how Daniel Goldstein, Develop Don't Destroy Brooklyn, and a handful of lawsuits nearly brought down the massive $4.9 billion Atlantic Yards project. For years, the arena cum condos were held off by one suit after another, first at the federal level, then in the state courts. The legal challenges went on for so long that when the recession hit, it nearly killed the damn thing. (Someone should really write a book about all this.)

Obviously, it didn't work, as the project found a savior in Russia, broke ground in March, and the arena is (maybe) on its way to opening in time for the 2012-2013 basketball season.

Still, there are a few remaining court cases to unwind, and as the indefatigable Norman Oder reports today, two of them have been tossed out by the Brooklyn Supreme Court. On Monday, Justice Abraham Gerges yet again ruled that the state was justified in its use of eminent domain at the Atlantic Yards site. The particulars of the case charged that the Empire State Development Corporation needed to file a new set of Determinations and Findings because the project had changed so much.

As before, Yards opponents could take some small consolation from the judge's decision, in that he essentially said what the state did was a terrible thing, but it not being the judiciary's place to overrule the legislature (and its constitutionally mandated subsidiaries, like the ESDC), there was really nothing he could do about it....

Barclays Center construction continues apace with Bruce Ratner telling friends it's on schedule for completion in late spring/early summer 2012. At the same time, the same Brooklyn judge who pushed Daniel Goldstein to sell out back in April dismissed two of the last challenges to the arena on Monday.

September 22, 2010

Gerges dismisses final eminent domain challenge: "alleged additional changes... even if factually true... do not change the public purpose"

Atlantic Yards Report

This case, on the other hand, was the small, final hope for stopping Atlantic Yards through an eminent domain challenge.

So much for charges that the Atlantic Yards Development Agreement--which allows for 25 years, rather than ten, to build the project-- "was intentionally withheld in bad faith."

So much for attorney Matthew Brinckerhoff's assertion that "we now know [the ten-year project timetable] is complete, utter fantasy."

So much for Brinckerhoff's charge that the Empire State Development Corporation (ESDC) timed release of information to avoid judicial scrutiny.

In a decision that was hardly unexpected, Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a lawsuit--Article 78 Petition to Compel the ESDC to Issue New Determinations and Findings, with three remaining plaintiffs--arguing that the project had changed so much and the public benefits so attenuated that new eminent domain findings should be made.

(This was the final case challenging eminent domain. Supreme Court Justice Marcy Friedman is still considering a reargument of a case challenging the project timeline.)

Development Agreement not important

Gerges had already rejected most of the arguments in March, in a decision in a case challenging the ESDC's condemnation process.

But the Development Agreement had not been part of that case. No matter. His key paragraph in the new decision:

For the same reasons, the court further finds that the alleged additional changes to the Project that petitioners rely upon in this action, even if factually true, similarly do not change the public purpose to be served by the Project, i.e., to eliminate blight and the blighting influence of the below-grade rail yard and to construct a civil [sic] project. In this regard, it is noted that although the alleged changes to the Project are now discussed in more detail, based upon the assertion that more details have been revealed, the basic premise of the arguments have already been considered and rejected by the court in the Condemnation Decision and adopted herein.

(Emphasis added)

This raises a question: could even more extreme changes, "if factually true," change the public purpose? In other words, if the developer had 100 years to eliminate blight, with no effective penalties, would the public purpose be attenuated?

Gerges dismisses case claiming state had failed to condemn easement over Spalding Building

Atlantic Yards Report

Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a claim by Peter Williams Enterprises (PWE) regarding air rights above 24 Sixth Avenue (the Spalding Building), agreeing with the Empire State Development Corporation that PWE released such rights when it sold its own nearby property, the one-story 38 Sixth Avenue and that the exercise of eminent domain "extinguished all easements."

Williams had publicly said that he had brought the claim for money and his attorney asserted that the state had made a "colossal mistake" in not specifying that the easement was subject to eminent domain.

In court arguments on August 6, there was a small twist, suggesting there might be something to PWE's claim. While the ESDC's appraisal to PWE covered the building and the easement, the sums were lumped together in the offer to PWE. But Gerges didn't address that directly.

New Bill Would Create Atlantic Yards Oversight Body

BrooklynSpeaks Press Release via Brooklyn Daily Eagle

BrooklynSpeaks, a coalition of civic associations, advocacy groups and affordable housing organizations concerned about development at the Atlantic Yards site, yesterday announced that more 1,000 New Yorkers have signed a petition calling for legislation mandating public oversight of the project.

Bills introduced into the state assembly by Assemblyman Hakeem Jeffries (A11431) and into the state Senate by Sen. Velmanette Montgomery (S08193) require the Empire State Development Corporation to create a dedicated subsidiary responsible for governance of the Atlantic Yards’ development, now expected to extend as long as 25 years.

“As the largest development project in Brooklyn’s history, Atlantic Yards must be managed with no less transparency and accountability than other important state and city projects, like Brooklyn Bridge Park,” said Assemblyman Jeffries, who represents most of the Atlantic Yards footprint. “We will not accept a private developer being given sole decision-making power over this project’s future given the significant public investment that has been made.”
...

The Atlantic Yards Governance Act has passed the Corporations Committee in the Assembly, and is currently before Ways and Means. The bill is before the state Senate’s Rules Committee.

According to a press release from the BrooklynSpeaks coalition (reprinted by the Brooklyn Eagle under the helpfully transparent byline of "Press Release"), more than 1,000 New Yorkers have signed a petition calling for legislation mandating public oversight of the project.

The key line in the statement is "important first step." As I wrote in June, the legislation last year had clear roles for local appointees, while the structure now proposed is vague, likely leaving more centralized power.

And this year the Empire State Development Corporation supports the legislation, though developer Forest City Ratner has not issued any statement.

September 2, 2010

Atlantic Yards has survived all court challenges, but some of the wins have been ugly, leaving significant doubts about the capacity of the legal system to oversee such projects. So let the revisionism begin. (Cf. a line from the New York Times on Atlantic Yards.)

In the same issue of The Urban Lawyer that contains a revisionist article on the seminal Berman v. Parker eminent domain case, the author of that article, Amy Lavine, a staff attorney at Albany Law School's Government Law Center, and I collaborate on an article titled "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project."

The article is embedded at bottom. Lavine did the first draft, and offered me credit because she relied so much on my work. I collaborated significantly on revisions. (Note Lavine's disclosure--unknown to me until this article--that she "provided limited research for Develop Don’t Destroy Brooklyn’s state eminent domain and MTA lawsuits.")

(The quarterly journal is published by the American Bar Association Section of State and Local Government Law, and edited by professors and students at the University of Missouri-Kansas City School of Law.)

Below I offer some choice excerpts.

Click through for those excerpts, as well as access to the full paper.

Surreal morning in court: finally, belatedly, a wholesale assault on the Atlantic Yards project, but before a detached judge

Yesterday in Kings County Supreme Court emerged the most complete—and, to the Empire State Development Corporation (ESDC), completely off-base—assault on the Atlantic Yards project ever heard in any courtroom, but it occurred before a handful of spectators and a single, not-so-engaged judge, well after most people, officials, and editors had relegated Atlantic Yards to the status of old news.

The case involves only three plaintiffs (two of whom are corporate entities owned by longtime footprint property owner Henry Weinstein), none of whom were in the courtroom. However, in challenging the ESDC to issue a new Determination & Findings because the justifications for eminent domain had changed markedly since 2006, it was essentially a challenge to the project itself. Supreme Court Justice Abraham Gerges faced dueling motions to both dismiss the case and expand the record.

With charges that the project timetable is “a complete fantasy” and the project is “a betrayal of the public trust” and “an embarrassment to democracy,” it was, perhaps, the argument that attorney Matthew Brinckerhoff should’ve made last October before the Court of Appeals, the state’s highest court, in a stately setting before engaged judges and a packed house. But, rather than get to the fundamentals of the sweetheart deal, that oral argument ran aground on debates about the contours of the state’s public use clause and whether the case should have gone to the high court in the first place.

Also, as Brinckerhoff stressed yesterday in court, some of the key elements of the ESDC’s behavior came to light only after the Court of Appeals’s decision in November, as well as the previous, seemingly dispositive appellate ruling: “They timed their disclosures in order to avoid judicial review.”

ESDC attorney Philip Karmel, unbowed, responded forcefully and sometimes dismissively to Brinckerhoff’s kitchen-sink arguments, some of which were not exactly on point. Curiously enough, however, Karmel never explained why the crucial Development Agreement, released in January weeks after it was publicly promised, was withheld for so long.
...

Starting off

Brinckerhoff began by thanking Gerges for giving him the time to argue and “for taking this matter seriously,” a statement that seemed a bit aspirational, aiming to goad Gerges into doing exactly that.

Brinckerhoff said he was acting for his clients, for all those affected by the project, and “frankly, for the public at large,” who’ve suffered “a really profound betrayal of the public trust by the respondent Urban Development Corporation [aka ESDC] in league with the developer.”
...

“Let me be clear about what I’m attempting to do,” declared Brinckerhoff, whose pepper-and-salt beard and sometimes unruly curls give him somewhat more of a professorial than corporate air, though his boutique law firm does quite well. “There’s a whole set of facts found in the document,” and none of such new information was disclosed until after the petition in this case was filed in January. Such facts, “put the nail in the coffin on what’s been going on for years.”

And that, he said, is why his clients should be granted, at a minimum, leave to amend the record to add such facts “deliberately concealed from us."

DDDB attorney Matthew Brinckerhoff took roughly on hour in court yesterday to lay out the "highlights" of the whole sordid Atlantic Yards partnership between Ratner and the ESDC. As Brinckerhoff said, if he was to cover all of the history, which he called an "embarrassment of democracy," it would have taken days.

August 9, 2010

In court Tuesday, a continuation of the lawsuit charging that AY benefits have changed so much the eminent domain findings should be reissued

Atlantic Yards Report

It looks like not one but two judges will have to grapple with a fundamental charge regarding Atlantic Yards: that the project has changed so much since its approval in 2006 that the findings at that time--regarding both the environmental impact of the project and its expected benefits--are no longer valid.

That doesn't mean the judges will rule in favor of those challenging the Empire State Development Corporation (ESDC). That, we've learned, is not exactly how courts in New York State work.

But it does mean they have to think about it. And tomorrow, in state Supreme Court in Brooklyn, Justice Abraham Gerges--however distracted and uninterested he was during the first part of the case on August 6--should not think the issues were resolved in similar case he dismissed in March.

(The hearing will be at Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.)*

Finally, in court yesterday, some serious charges were lodged about the essence of the Atlantic Yards project, part of the case challenging the Empire State Development Corporation's (ESDC) eminent domain Determination & Findings (D&F), based on the premise that the project had changed so much that the ESDC had to reassess its goals and value.

And previous court cases, limited to the record of Atlantic Yards as of 2006, were unable to examine the true nature of the project.

After a late start in state Supreme Court yesterday morning in Brooklyn--the two Atlantic Yards cases were set for 9:30 am, but state Supreme Court Justice Abraham Gerges didn’t arrive until 10:10--the case involving the easement held (and still claimed) by Peter Williams Enterprises (PWE) was heard.

And while the arguments mostly reprised those in the legal papers--that PWE had given up any claim to the light and air above 24 Sixth Avenue (the Spalding Building) when it sold its own property, 38 Sixth Avenue--there was a small twist, suggesting there might be something to PWE's claim.

The conclusion of this blog entry suggests that Judge Abe Gerges will broker a settlement.

Gerges said he wanted to get the parties together to perhaps work something out. They’re due back in court on Thursday, August 12 at noon.

August 6, 2010

Likely the last oral arguments in any of the latest round of Atlantic Yards legal cases will be held this morning before Kings County Supreme Court Justice Abraham Gerges, at 9:30 a.m.

The location is Kings County State Supreme Court, IAS Part 74, 320 Jay Street, Room 17.21, Brooklyn. Here's the map.

Both cases are distinct longshots for those challenging the Empire State Development Corporation (ESDC), but still could provoke some interesting volleys. Both cases are named for property owner Peter Williams, but he actually doesn't remain a party in the first case.

New Determination & Findings?

In June, as I wrote, in a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.

Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.

Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.
...

The remaining petitioners are two entities owned by Henry Weinstein, a longtime owner of property near the corner of Carlton Avenue and Pacific Street, and The Gelin Group, occupants of a house on Dean Street east of Sixth Avenue, slated for condemnation in a later phase of the project.

Friedman is still considering a separate case, brought by coalitions organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks, challenging the legitimacy of the ESDC's ten-year timeframe and requesting a Supplemental Environmental Impact Statement to evaluate project impacts over a longer period.

In that case, she did consider the belatedly-released Development Agreement.

July 1, 2010

Atlantic Yards Challenge Heard in Manhattan Supreme Court

The Local [Fort Greene/Clinton Hill]
by Mitchell Trinka

In mid-April the Prospect Heights Neighborhood Development Council, a group of neighborhood organizations concerned about local development, filed a motion that asked the New York State Supreme Court to reconsider a decision in January that maintained approval of the Atlantic Yards 2009 modified general project plan. On Tuesday lawyers from both sides had their chance to offer oral arguments in Manhattan Supreme Court.

Gib Veconi, a member of the development council board that filed the motion, said that changes in the project’s construction schedule were at the heart of the suit. The schedule expanded from ten years until completion in the original plans, to a possible 25 years. It was a time line not released to the public until after a decision came in favor of Atlantic Yards in late January, he said.

“That means a large area of the project footprint would be used as a parking lot for decades,” Mr. Veconi said.

Is ten-year AY schedule reasonable? Judge puts ESDC on the defensive as Development Agreement is scrutinized in 75-minute reargument

In an unusual reargument of a case that was argued January 19 and decided March 10, a lawyer for the Empire State Development Corporation (ESDC) was put on the defensive yesterday, forced to acknowledge that there are far fewer penalties for delays in completing the Atlantic Yards project as a whole than those for the first phase, which includes the arena and three towers.

Will it make a difference? It’s hard to predict a yes, given that courts generally defer to agencies like the ESDC.

But the fact of the reargument itself--and the uncomfortable facts in the belatedly-released Atlantic Yards Development Agreement--suggest that, at the least, New York County Supreme Court Justice Marcy Friedman will chastise the agency, if not order a Supplemental Environmental Impact Statement (SEIS) or otherwise throw a wrench into the project.

After all, in her March 10 ruling Friedman criticized the ESDC’s “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally.”

The MGPP, approved last September, was amplified and modified by the Development Agreement, signed in December but released in January. And yesterday Friedman steadily put ESDC lawyer Philip Karmel through a careful cross-examination.

75-minute hearing

At the outset of the hearing, Friedman said she’d allow only 40 minutes of argument, but she spent 75 minutes listening to and questioning Karmel and lawyers for two groups of community petitioners. The latter had asked her to reconsider the ruling that the project's ten-year timeline was legitimate and that an SEIS was not necessary.

Key to the motion for reargument is the Development Agreement, which was not released until about a week after the oral argument in January--despite a pledge to release it earlier--and which Friedman had refused to add to the case.

Though Atlantic Yards may seem like a done deal--eminent domain was approved months ago and (perhaps not coincidentally) Forest City Ratner announced yesterday that concrete had been poured for the Atlantic Yards arena--attorneys for the ESDC and FCR evinced some tension, a sign that the courts remain a wild card.

June 29, 2010

Motion to Reconsider Atlantic Yards in Court Tuesday

Tuesday a Manhattan Supreme Court justice will hear oral arguments on a Motion to Reconsider the approval of the multibillion-dollar Atlantic Yards project in Downtown Brooklyn.
...

Years of litigation has plagued and delayed developer Forest City Ratner from building Atlantic Yards on schedule, as lead opposition group, Develop Don’t Destroy Brooklyn, challenged the state’s controversial use of eminent domain to take the land from private homeowners and businesses in the project’s footprint. The group BrooklynSpeaks claims that the new evidence consists of a master development agreement that was allegedly executed between Forest City Ratner and other parties in the Atlantic Yards project, after the Empire State Development Corporation had already agreed to approve the Modified General Project Plan.

That agreement was withheld from public disclosure until after the hearing in the case, the petitioners claim. While several lawsuits challenging Atlantic Yards remain pending, few legal analysts believe that any pose a real threat to stopping the project, now that the eminent-domain lawsuits are over.

Was there an "appeal" to the Appellate Division in the Columbia eminent domain case? The Court of Appeals gets it wrong

Atlantic Yards Report

Shhhh! Geniuses at work.

After watching the oral argument June 1 in the eminent domain case involving the Columbia University expansion, I suggested that Court of Appeals Chief Judge Jonathan Lippman was being either incredibly ignorant or faux-naive when he asked if there is "statutorily-provided discovery in this kind of situation."

The answer, of course, is no, and that's why the law favors condemnors more than in any other state.

Deference, and new law

The court's decision last week offered deference to the Empire State Development Corporation's (ESDC) blight findings.

Also, as attorneys at ESDC co-counsel Sive, Paget & Riesel admit, it created new law by "holding that 'civic projects' under the UDC [Urban Development Corporation] Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions."

I wrote on June 23 about the effort to get the belatedly-released Development Agreement to be considered as part of the record.

Here are the messages from Develop Don't Destroy Brooklyn and BrooklynSpeaks, both of which organized petitioners.

DDDB said:

If, as the Court ruled, the ESDC's rationale was "only minimally" supported before, it would seem that that minimal support erodes entirely due to the facts subsequently revealed in the Atlantic Yards Development Agreement.

BrooklynSpeaks said:

Judge Friedman's decision to proceed with oral arguments on the sponsors' motion to reconsider represents an important opportunity to put before the court new information from the development agreement indicating the 2009 MGPP failed to address impacts of the Atlantic Yards project that ESDC knew were not only possible, but likely. Members of the community are encouraged to join us for the June 29 hearing.

Tuesday, June 29: Oral Argument on Thorny Atlantic Yards Legal Issue

Develop Don't Destroy Brooklyn

While Forest City Ratner has gained control of the arena site (by abusing eminent domain and a sweetheart deal with the MTA) and started excavation for the arena, there is still a thorny legal issue concerning the timeframe of the project and the resulting environmental impacts.

Oral argument on that thorny legal issue will take place on Tuesday, June 29th at 11am on the case DDDB et al. v. ESDC. The argument is on the plaintiffs' motion asking the court to reconsider and reargue their challenge to the state's September 2009 approval of the Atlantic Yards Modified General Project Plan.

Judge Marcy Friedman had ruled for the ESDC (Empire State Development Corporation). But the plaintiffs, DDDB and 19 other community groups, as well as BrooklynSpeaks, asked the court to allow reargument in light of new, critical evidence found in the Atlantic Yards Development Agreement between ESDC and Ratner, which had been made public only after the case was argued. Put more simply—the ESDC purposely held back key documents from the legal record.

June 25, 2010

NY's Highest Court Upholds Columbia University Expansion Plan

WNYC Radio
by Matthew Schuerman

The state's highest court has unanimously rejected a lawsuit by two West Harlem businesses that challenged Columbia University's $6.3 billion expansion plan. The university controls the overwhelming majority of the 17 acres where it wants to build a third campus, and has already begun digging sewage trenches and demolishing buildings. The Court of Appeals decision will allow the university to proceed more confidently while also putting to rest a decision from an appeals court that sided in favor of the property owners.
...

Nick Sprayregen, the owner of a self-storage company that was one of the two plaintiffs, said he is considering taking the case to the U.S. Supreme Court. "It means that entities such as Columbia or a developer can bring on their own blight into a neighborhood and then benefit from it," Sprayregen said. "It really has far-reaching consequences and none of it is positive."

Allowing a wealthy developer to take the homes of a neighborhood to profit from condos and a basketball arena under the guise of community development was bad enough. Now New York's top court, the Court of Appeals, is bending for the will of an economic giant and against small businesses that stand in their way. We are talking of course, about the private Columbia University, the largest land owner in Uptown Manhattan versus the few business owners that stand in their way of a major campus expansion.

To be clear, nothing is standing in the way of Columbia's major campus expansion. The properties owned by the Singhs and Nick Sprayregen stand only in the way of a contiguous expansion.

Instead of claiming the arguments shown above, the Court should come clean, and admit to what's really behind all this. When push comes to shove, the rich are given deference over those that are not. Campaign donations from those that can afford it are used to unfairly sway those that are elected to serve the people. Ultimately, the judges fall in line and make flimsy excuses for allowing this shameful practice to continue.

Three businesses in the project zone sued. They claimed collusion between the school and state agency, arguing that findings of blight were based on vermin, garbage and mold in buildings Columbia owned. Attorney Normal Siegel argued the university should not be rewarded for that with the forced sale of others' property.

Siegel said he expects his clients to seek a review by the U.S. Supreme Court.

"We respectfully disagree with the reasons, the analysis and the conclusion," he said. "At minimum this should be a wakeup call for the people in New York regarding the abuse of eminent domain. It calls out for major legislative reform."

The Singh and Sprayregen families, who combined own about 9% of the area Columbia wants to redevelop, sued the ESDC to block it from condemning their property. Columbia owns the lion's share of the rest of the land, although the city also owns a portion. The families had alleged, among other charges, that there was no evidence of blight in the neighborhood until Columbia started buying up buildings and letting them fall into disrepair. A finding of blight is necessary for the use of eminent domain. The families also alleged that there was collusion between Columbia and the ESDC, and that they acted in bad faith.

The ruling is the latest victory for the state and city as they have declared property blighted so that another private owner can develop it for another, purportedly better use. In earlier rulings, the courts also upheld the state’s use of eminent domain in clearing the way for Bruce Ratner’s Atlantic Yards complex in downtown Brooklyn.

The business owners, represented by civil rights attorney Norman Siegel, argued that there were no findings of blight in the area before Columbia acquired property there. “Despite the objective data in the record to the contrary, the Appellate Division plurality agreed, stating that there was ‘no evidence whatsoever that Manhattanville was blighted prior to Columbia gaining control over the vast majority of property therein,’” wrote Judge Ciparick. “This argument is unsupported by the record.”

The state’s highest court ruled that the lower court had disregarded the results of a 2003 study conducted by consulting firm Urbitran Associates at the request of the New York City Economic Development Corp., when the university had just begun acquiring property in the area. “Indeed, the Urbitran study unequivocally concluded that there was ‘ample evidence of deterioration of the building stock in the study area’ and that ‘substandard and unsanitary conditions were detected in the area,’” according to Judge Ciparick’s opinion.

NoLandGrab: Let's just be clear that nothing is as "unsupported by the record" as a study commissioned by the New York City Economic Development Corporation.

New York’s Eminent Domain “Blight” Grows

Commentary
by Jonathan Tobin

The ruling of New York’s Court of Appeals — the state’s highest judicial body — in favor of Columbia University’s bid to have the property of landowners who will not sell their land to the institution condemned is another depressing chapter in the sorry history of the corruption of the use of eminent domain.

While I have no quarrel with the university’s desire to expand the Morningside Heights campus, where I spent my undergraduate years north into Harlem, the idea that it can use its clout with the state to bludgeon those who will not sell to it is repulsive. Moreover, the court decision, which overruled a lower appeals court’s rejection of the use of eminent domain in this case, is especially troubling. Though most of the property owners in the West Harlem area desired by Columbia sold it, some did not. In response, Columbia prevailed upon the State of New York to condemn the recalcitrant owners’ property upon the doubtful premise that it was “blighted,” which mandated its demolition and replacement with more useful (at least to Columbia) projects, which might ultimately generate more tax revenue. The four active warehouses and two bustling gas stations that Columbia wished to flatten to make way for new buildings of its own do not fit that description of “blighted,” though there is no shortage of locations in New York City that do.

Referring to another eminent-domain case in which the Court had recently ruled in favor of the effort to bulldoze businesses and apartments in order to make way for a new basketball arena and other real-estate projects in the Atlantic Yards section of Brooklyn, the decision, which was written by Judge Carmen Beauchamp Ciparick, claimed that “if we could rule in favor of a basketball arena, surely we could rule for a nonprofit university.”

But in making this point, Judge Ciparick revealed that what is on display in this decision is not the application of a coherent legal principle but rather merely the justification of an act of judicial tyranny. In this way, New York has ratified a procedure by which the powerful, be they the real-estate developers who own the NBA Nets or the trustees of one of America’s most prestigious universities, can simply force small property owners out of their businesses and homes for the sake of the convenience of the wealthy and of those who are better connected to power brokers. This means that the state has the power to label any property as “blighted” in order to create a legal fiction device that allows powerful interests to acquire it without the consent of its owners. This is state-sponsored theft by any definition and the fact that it is practiced on behalf of a “nonprofit university,” as well as an NBA team, does not make it any less odious.

In less than four weeks after a contentious oral argument, the state Court of Appeals brought an unsurprising end to the Cinderella story that was the Columbia University eminent domain case, ruling unanimously--though with a very reluctant concurrence--that the courts should defer to the Empire State Development Corporation in its finding of blight.

As I reported after watching the oral argument in Kaur v. N.Y.S. Urban Development Corp., the judges--including Atlantic Yards dissenter Robert Smith--felt bound by their decision in the Atlantic Yards case last November, a decision that was glaringly ignored by the two-judge plurality who shortly afterward ruled against the ESDC in the Columbia case.

Wrote Smith:

I concur in the result on constraint of Matter of Goldstein v New York State Urban Dev. Corp. The finding of "blight" in this case seems to me strained and pretextual, but it is no more so than the comparable finding in Goldstein. Accepting Goldstein as I must, I agree in substance with all but section VI of the majority opinion.

The decision, I wrote, would hinge on how seriously the court took allegations of bad faith by the ESDC and biased methodology by its consultants. Answer: not much.

The court ignored a memo from an ESDC lawyer, as cited by property owners' attorney Norman Siegel, that stated, We are going to manufacture support for condemnation.
...

Appeal coming

According to the Observer, Nick Sprayregen, who owns Tuck-It-Away storage company and has spent more than $2 million on legal cases--more than twice as much as has been spent in the Atlantic Yards cases--vowed to appeal.

"This decision, if not overturned, will allow eminent domain abuse in New York to become even worse than it is now," he wrote. "In effect, this court is sending a clear signal that a blight designation, even is caused by the very developer seeking the use of eminent domain, is acceptable."

High Court Overturns Columbia Eminent Domain Ruling; No One's Property is Safe in New York

Develop Don't Destroy Brooklyn

DDDB trumpets a badly needed call to action.

Back in October the Court of Appeals allowed Ratner and New York State to move forward with eminent domain for Atlantic Yards. In a contrasting decision a Manhattan lower appellate court said Columbia could not use eminent domain to seize businesses in West Harlem. Today the high court ruled that any time government says there is "blight" the court has basically no role whatsover in reviewing that decision, no matter how corrupt or collusive that decision appears on its face.

So the Columbia expansion and Atlantic Yards bogus blight findings have now been given the stamp of approval by the state's high court. And the same court thinks that private arenas and private schools are somehow a public use.

Nonsense.

It is a very sad day for all New Yorkers. There appears to be no judicial review allowed when state actors and their developer friends collude to take homes and businesses from the little guy. Twice now the high court has excused itself from any meaningful review of the government's abuse of this awesome power.

The upsetting rulings leave no doubt for what must be done. Legislative reform must occur if we are going to protect our citizens from eminent domain abuse such as what has occurred in Prospect Heights, West Harlem and elsewhere.

There is such reform afoot. Senator Bill Perkins has a bill that would not allow these kind of bogus blight findings. The bill has made it out of committee and the full Senate must vote on it.

Please call or email Senate Leader John Sampson to tell him that New Yorker's no longer have any protection against eminent domain abuse—not from the Court's and not from the Legislature—and so the Senate must vote on the Perkins bill and must pass it...today. There is no more time to wait.

June 23, 2010

Justice Friedman schedules motion for reargument in case challenging ten-year timeline; Development Agreement should get its day in court

Atlantic Yards Report

The belatedly-released Atlantic Yards Development Agreement should get its day in court, after all. A hearing in the effort to reopen the case challenging the Modified General Project Plan--essentially the legitimacy of the ten-year timeline--will be held on Tuesday, June 29.

It will be held before state Supreme Court Justice Marcy Friedman at 60 Centre Street, Room 335, at 11 am.

Chance of success

Given general judicial deference to the Empire State Development Corporation (ESDC) and other agencies, it's a long shot to expect a ruling in favor of the petitioners, community groups organized by Develop Don't Destroy Brooklyn (DDDB) and BrooklynSpeaks.

However, the petitioners have some inconvenient facts to air in court regarding the dubiousness of the official ten-year project timeline.

If the case is successful, it could severely slow the project--at least the non-arena portion--by requiring new analyses of the project's environmental impact.

Atlantic Yards Court Argument Scheduled for Tues, June 29, 11am

Develop Don't Destroy Brooklyn

Oral argument has been scheduled for Tuesday, June 29th at 11am on the case DDDB et al. v. ESDC. The argument is on the motion by the petitioners asking the court to reconsider and reargue their challenge to the state's September 2009 approvlal of the Atlantic Yards Modified General Project Plan.

Judge Marcy Friedman had ruled for the ESDC. But the plaintiffs, DDDB and 19 other community groups, as well as BrooklynSpeaks, asked the court to allow reargument in light of new evidence found in the Atlantic Yards Development Agreement between ESDC and Ratner, which had been made public only after the case was argued.

The ruling on the original case—which challenged the ESDC's September 2009 approval the Modified General Project Plan—hinged on whether or not there was a rational basis for the ESDC to claim the project would take ten years.

June 14, 2010

Will Development Agreement get its day in court? Unlikely, as Justice Friedman moves case back to condemnation judge who already dismissed issue

Atlantic Yard Report

It looks like the belatedly-released Atlantic Yards Development Agreement--which signals significantly relaxed deadlines for the project--won't get its day in court, after all.

In a brief, five-page decision in the case known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka Empire State Development Corporation, or ESDC), state Supreme Court Justice Marcy Friedman essentially rejected a challenge by property owners that the Atlantic Yards project has changed so much that the ESDC should be forced to issue a new Determination & Findings to proceed with eminent domain.

Friedman did not formally reject the case, because she didn't examine the Development Agreement or get to the merits.

Instead, she moved it from New York County (Manhattan) to Kings County, as the ESDC had requested. In Kings County, Justice Abraham Gerges, who handles condemnations, already rejected similar arguments when rejecting a direct challenge from property owners to the condemnations.

The decision was dated May 26 and filed June 1, but I only learned about it last week. I asked the attorney for the petitioners, Matthew Brinckerhoff, for a comment, but didn't get one.

Development Agreement still at issue in separate case

Friedman is still considering a request by two groups of petitioners--organized by Develop Don't Destroy Brooklyn and BrooklynSpeaks--to consider the Development Agreement in revisiting her March 10 ruling that the ESDC's ten-year timeframe for Atlantic Yards was reasonable.

In her ruling, Friedman disagreed that a Supplemental Environmental Impact Statement to reflect the burden of a 25-year project on communities was necessary. Nor would she annul the 2009 Modified General Project Plan, or MGPP.

But she refused to let the Development Agreement--released in January a week after oral argument--to be added to the case, known as Develop Don't Destroy (Brooklyn), et al., vs. Empire State Development Corporation and Forest City Ratner Companies.

She's still considering the request for reargument, but such motions, like appeals, are generally more of a long shot than new cases, as was the Williams case.

June 2, 2010

Norman Oder provides the blow-by-blow of yesterday's argument in the New York State Court of Appeals over the Columbia University eminent domain case.

In the highly contested 40-minute oral argument yesterday in the Columbia University eminent domain case, attorneys significantly reprised arguments in the briefs, with frequent references to the Atlantic Yards case the Court of Appeals decided last November.

I didn’t make it to Albany and none of the city’s three daily newspapers sent a reporter. That’s dismaying, given that the Appellate Division’s surprising and contested rejection of the Empire State Development Corporation’s eminent domain findings was big news last December.

The bottom line of the argument is unclear, given there are various strands of argument. In other words, if the court upholds the ESDC on its finding of blight--as is not unlikely, given its decision in the AY case--it could find other reasons to block Columbia.

After more than six years of buildup, the fate of eminent domain in Manhattanville came down to 45 minutes in a small courtroom in Albany.

On Tuesday, the seven judges of the New York State Court of Appeals, the highest court in the state, heard oral arguments on whether the state should be allowed to invoke eminent domain—the process of seizing private properties for a “civic purpose” in exchange for market-rate compensation—on Columbia’s behalf. The University plans to build a 17-acre campus in West Harlem, but two business owners, who represent about 9 percent of the land in the expansion zone, have refused to sell their properties.

Former New York Civil Liberties Union director Norman Siegel argued on behalf of Tuck-It-Away Self-Storage owner Nick Sprayregen and gas station owners Gurnam Singh and Parminder Kaur, and attorney John Casolaro represented the Empire State Development Corporation, the body that approved eminent domain for the project in December 2008.

Sprayregen, Singh, and Kaur challenged that approval in court in January 2009, and last December, the New York State Supreme Court, Appellate Division declared eminent domain in Manhattanville illegal in a 3-2 decision, which ESDC immediately appealed.

That brought the fight to the Court of Appeals, where Siegel called on the judges to uphold the Appellate Division ruling on several bases: one, that ESDC declared the neighborhood “blighted” in “bad faith” and based on faulty methodology; two, that there was “collusion” between ESDC and Columbia, because ESDC hired a company to conduct a blight study when that company was also a contractor for the University; three, that the expansion of a private university does not constitute a “civic purpose”; and four, that Sprayregen’s due process rights were violated when ESDC refused to turn over certain documents requested under the Freedom of Information Law in time for them to be included in the record for this case.

A state redevelopment agency urged New York's top court on Tuesday to approve its use of eminent domain so Columbia University can expand its Ivy League campus over 17 acres in West Harlem.

At oral arguments, Empire State Development Corp. attorney John Casolaro said the Court of Appeals should overturn a divided lower court and conclude this constitutes an appropriate civic project for educational purposes where the state can take land, even when the land goes to a private, not-for-profit institution.

"The Legislature has indicated this is a proper public purpose," Casolaro said.

NoLandGrab: Casolaro meant, of course, that the unelected, unaccountable ESDC had made that determination (surprise, surprise)  not the Legislature.

As you may recall, December brought a major obstacle to Columbia’s dreams of expansion: the New York State Supreme Court decided 3-2 that that state could not use eminent domain to secure parts of West Harlem for Manhattanville. The Empire State Development Corporation, the only major defendant in December’s case, has appealed the decision with the Columbia administration’s support.
...

In November, the New York Court of Appeals gave the uber-fraught Atlantic Yards a 6-1 approval of use of eminent domain, but the Atlantic Yards project did not stumble in the NY Supreme Court like Manhattanville has.

A decision is expected this summer, which could mean this month and could also mean three months from now.

Last November, the same judges that will hear the Columbia case ruled that eminent domain could be used to clear the Atlantic Yards site in Brooklyn so that developer Forest City Ratner could build a huge mixed-use project there.

However, experts say the Atlantic Yards decision doesn't guarantee a similar outcome because there are numerous differences between the two cases. For starters, the opponents of Columbia using eminent domain won in the lower court, unlike their counterparts in the Atlantic Yards case. Last December, in a strongly worded opinion, the New York State Supreme Court Appellate Division said it would be unconstitutional to use eminent domain to benefit “a private, elite education institution.”

“You are never the favorite when you are seeking a reversal,” said Scott Mollen, a partner at law firm Herrick Feinstein, who isn't involved in the case.

May 18, 2010

Justice Friedman limits oral argument to issue of whether case involving Development Agreement should be transferred to Gerges in Brooklyn

Atlantic Yards Report

Yesterday, I asked: will the Atlantic Yards Development Agreement--which gives far longer deadlines than officially proclaimed when the project was approved--get its day in court?

Well, it didn't happen today and it's looking less likely (though not impossible).

In a hearing that lasted little more than 20 minutes, Supreme Court Justice Marcy Friedman limited argument in the case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka Empire State Development Corporation, or ESDC), to questions of venue--whether the case even belonged in her court.

Her announcement at the start perked up ESDC attorney Philip Karmel and left the 15 or so project opponents in the audience somewhat frustrated. (Also in the audience, a few attorneys for Forest City Ratner, the meter ticking.)

Should she agree that it does, rather than move the case to a condemnation judge in Brooklyn who has ruled without question in the ESDC's favor, she'll then entertain arguments on the merits of the case.

Atlantic Yards Hits Air-Rights Turbulence

ArtInfo

Does real estate have a memory? New York City has seen its share of bungled, back-and-forth construction projects that, once completed, become part of the urban fabric, their birth pangs forgotten. The Guggenheim, for instance, was once the target of the wrath of artists, who refused to display art in a building they considered a monstrosity; after the instant landmark opened, all was forgiven.

But while public sentiment seems to be swinging in favor of the World Trade Center rebuilding project, it's less certain whether the turmoil can ever burn off of another convoluted endeavor across the river: Brooklyn's Atlantic Yards. Just as Forrest [sic] City Ratner seemed to win over the last of the neighborhood's anti-construction holdouts, another canny local has slapped the developer with an arcane "air rights" lawsuit.

May 17, 2010

Tuesday at 2:30 pm: will Development Agreement get its day in court?

Atlantic Yard Report

My preview, redux:

The last Atlantic Yards case to reach oral argument will be heard tomorrow, May 18; the issues include whether the belatedly-released Development Agreement can be formally added to the case and whether the case remains before a Manhattan judge already critical of the Empire State Development Corporation (ESDC) or moved to a Brooklyn judge who has ruled without question in the ESDC's favor.

The case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), will be heard at 2:30 pm at 60 Centre Street, room 335, before Supreme Court Justice Marcy Friedman.

Oral argument on Article 78 lawsuit seeking to compel the Empire State Development Corporation (ESDC) to make new Eminent Domain Procedure Law (204) findings and determinations.

A number of property owners and tenants in the footprint brought this lawsuit in January 2010 arguing that the eminent domain takings were based on a 2006 approved plan that no longer exists. If the property seizures are going to occur, they must be for the drastically altered current plan—a basketball arena and one building—not for the project originally conceived with the promise of 2,250 affordable housing units, 16 towers and 10,000 jobs. The case argues that the ESDC must make new findings and determinations under the States's Eminent Domain Procedure Law.

The last Atlantic Yards case to reach oral argument will be heard tomorrow May 18th; the issues include whether the belatedly-released Development Agreement can be formally added to the case and whether the case remains before a Manhattan judge already critical of the Empire State Development Corporation (ESDC) or moved to a Brooklyn judge who has ruled without question in the ESDC's favor.

The case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), will be heard [on May 18th] at 11 am 2:30 pm at 60 Centre Street, room 335, before Supreme Court Justice Marcy Friedman.

The Development Agreement

The plaintiffs argue that the ESDC should not have relied on the 2006 Determination and Findings (D&F) to exercise eminent domain but instead should have issued a new D&F describing the public use to be served by the project as of 2010, given that the Development Agreement, among other documents, points to a much longer buildout.

I previewed the arguments on 4/9/10 and covered the brief hearing on 4/12/10; as noted below, a major pending issue is whether the case should be moved to Kings County Supreme Court Justice Abraham Gerges, who already ruled against similar arguments in the effort to block condemnation, but didn't evaluate the Development Agreement.

As for the Development Agreement, Friedman is already considering it in motions to reopen a separate case challenging the legitimacy of the claimed ten-year buildout. She had ruled against the petitioners, two coalitions of community groups, but had refused to open the record to the Development Agreement, released in late January.

Even as construction proceeds on the arena, the fundamental question, to attorney Matthew Brinckerhoff (who represents petitioners in the D&F case), is whether the ESDC will succeed in its "bad faith attempt to conceal the true nature of the Atlantic Yards Project from Petitioners and the public at large until after the time to challenge it has expired."

So declares Forest City Ratner in a blistering and brazen defense of the ambiguous document, kept under wraps until late January, that sets an outside date to complete Atlantic Yards in 25 years but also seems to obligate the developer to build the project, as promised, in a decade.

(The obligation involves penalties, by my calculation, that are only about $5.5 million for a 15-year delay, on top of $5 million for each of three Phase 1 towers if they're late and $10 million for a late arena.)

The Empire State Development Corporation (ESDC) is a bit more circumspect, stating the agreement's "terms are consistent with the information that was in the administrative record reviewed by this Court." The ESDC blames "petitioners' coordinated scorched-earth litigation strategy of filing multiple motions against the Atlantic Yards Project."

FCR and the ESDC point to clauses in the Development Agreement that point to daily fines for delays of $1000 or $10,000--more likely the former, as noted below--and say those are not trumped by larger penalties for delays in three towers.

Pending legal battle and judicial skepticism

The statements come in legal papers filed before State Supreme Court Justice Marcy Friedman, asked to revisit her March 10 ruling that the ESDC's ten-year timeframe for Atlantic Yards was reasonable, thus not requiring a Supplemental Environmental Impact Statement to reflect the burden of a 25-year project on communities or an annulment of the 2009 M0dified General Project Plan (MGPP).

Friedman already has reason to be skeptical of the developer and the ESDC, given that she previously wrote that the latter's rationale was "marginally sufficient to survive judicial scrutiny" and that its consideration last year of plan modifications "lacked the candor that the public was entitled to expect."

And she didn't consider the Development Agreement, signed in December 2009, three months after the project was approved, but released publicly only in January, a week after oral argument in this case.

May 6, 2010

Another look at the Peter Williams case: did easement come with building and could it be sold to opponents?

Atlantic Yards Report

WNYC reports on the case brought by Peter Williams Enterprises (PWE):

He says the state took his property by eminent domain but forgot about air rights he acquired above an adjacent building nine years ago.
...Forest City Ratner says Williams never owned the air rights but instead a light and view easement that he forfeited when he gave up his building.

The lawsuit says that PWE was conveyed "certain property above the plane" of 24 Sixth Avenue, including, as noted in the underlying document, "the right and interest of light and air."

So that's property, but it isn't "air rights" in the sense of the right to build.

Does easement go with building?

It's plausible that a property owner would lose the benefit of an easement when that property is sold; as described in FindLaw, some easements typically remain with the property while others do not.

With the former, the "easement essentially becomes part of the legal description." However, as Williams's lawsuit states, the easement was never described in eminent domain proceeding.

Williams told the Post he was contacted by project opponents who are in the process of raising money to buy the air rights before Ratner can. He declined to give his asking price but said he’d "prefer" to sell to the opponents because he considers Ratner a "bully."

Bruce Ratner must have exhaled a sigh of relief when outspoken nemesis Daniel Goldstein finally agreed to vacate the last apartment in the footprint of his multi-billion dollar Atlantic Yards site last month, giving way for the humongous project to begin construction. But just because no one is physically in his way anymore doesn't mean Ratner doesn't have to contend with more ethereal concerns!

While Bruce Ratner was finally successfully in paying Develop Don’t Destroy Brooklyn’s Daniel Goldstein to leave his Brooklyn home, another local resident is presenting a separate challenge to plans to build a new Nets arena.

May 5, 2010

Just when developer Bruce Ratner thought he'd grabbed all the land he needed for his Atlantic Yards project, a property owner is staking one last claim - to the air above the site.

Peter Williams insists he still owns the air rights over a Sixth Ave. lot - and says the state forgot to condemn it when they used eminent domain to seize the rest of the site.

He sued the state Tuesday, charging the Empire State Development Corp. is trying to "steal" his property and "intends to proceed as if it owns property it plainly does not.

"They screwed up," Williams said.
...

The state took possession of the Sixth Ave. building where Williams' grown children lived on March 1 - but never filed to condemn the air rights he owns over the former condo building next door.

"I have something of value that they're not paying me for," he said. "They're trying to run me over with a steamroller."

Williams came to own the air rights over the building next door in 2001, in return for letting the owner route an emergency exit through his property.

But other property owners at the project site can't follow Williams into court looking for a payday: Their air rights were taken by the state along with their land.

Without Williams' air rights, Ratner can't build anything taller than four stories at the site. He also can't claim the "vacant possession" of the project site he needs before turning over ownership of the NBA's New Jersey Nets to Russian billionaire Mikhail Prokhorov. The Nets are slated to move into the Barclays Center arena in 2012.

A former Prospect Heights property owner is claiming to own the air rights to a part of the site where Bruce Ratner plans to build his new Nets arena and is suing the state for trying to "steal" it.
...

If the court rules in Williams' favor, a state condemnation of his air rights could take up to two years -- time that could devastate the project.

May 4, 2010

In last-minute lawsuit, owner of easement in arena block seeks to preclude claim of vacant possession; his goal is money, not to stop arena

Atlantic Yards Report

Peter Williams, who owned an industrial building-turned-home (occupied by his two adult children, and a third person) in the Atlantic Yards arena block, settled weeks ago with Forest City Ratner.

Now he's brought an unusual lawsuit claiming that the state made a "colossal mistake" in not pursuing eminent domain for the easement bordering and above the Spalding Building at Sixth Avenue and Pacific Street. He acquired the easement in 2001 and owned adjacent 38 Sixth Avenue.

This could stop the Empire State Development Corporation and Forest City Ratner from claiming they have achieved "vacant possession" of the arena block when current occupants leave by Saturday.

The easement prevents anything more than four stories from being built at the corner of Sixth Avenue and Pacific Street--presumably precluding an arena.

Doh! Stupid easements!

Though the lawsuit raises the spectre of requiring a whole new process under the Eminent Domain Procedure Law (EDPL), Williams, a former plaintiff in the Atlantic Yards eminent domain cases, has not displayed a particular ideological bent. Rather, he's publicly said he's in it for the money.

A real-estate mogul says he owns some "air rights" above the site of the planned Nets arena in Brooklyn — and that the billion-dollar project can’t be completed until he settles the issue with the developer.

Peter Williams — who has already received a money settlement from developer Bruce Ratner for handing over property he owned at the arena site — today filed a scathing lawsuit accusing the state of fowling up the project’s controversial condemnation process and trying to "steal" his air rights.

Or as Bruce Ratner and his lackeys at the ESDC like to call them, "err rights."

It alleges the state colossally blundered by never condemning air rights Williams has owned since 2001 above and around 24 Sixth Avenue in Prospect Heights when it previously condemned other land owned by project holdouts.
...

If the court sides with Williams, it could take up to two years for the state to be able to "condemn" the air rights and clear the way for the project — time that Ratner doesn’t have.

The project nearly fell apart over earlier legal delays, and Russian billionaire Mikhail Prokhorov’s anticipated purchase of the Nets from Ratner is contingent on all the property being free and clear of any hurdles.

Wlliams said he filed the suit because he believes the state "screwed up" and he considers Ratner "a bully." He declined to say how much of a settlement he’s seeking but is open to one.

"I’m not a martyr like Daniel Goldstein," he said, referring to the leader of the project opposition group who last month ended a six-year holdout on his condo by agreeing to a $3 million settlement.

The suit raises the issue of whether air rights should be considered a separate property lot.

The red outline shows a large piece of property that, according to opponents, the state forgot to condemn, which means the entire project is now in really serious jeopardy, if not dead.

And that payment that Bruce Ratner is making to Daniel Goldstein to get him out by Friday is really just a lot of money down the toilet now from Ratner's perspective, because Goldstein really was never the last obstacle. Actually, the last obstacle is the state's own stupidity.

How wonderfully ironic yet completely appropriate is this?

NoLandGrab: It's a actually a tiny lot adjacent to that red parcel (and air space above it), but it might well be large enough to cause Bruce Ratner and the ESDC a monumental (and, might we add, well deserved) headache.

Small blunders could be causing some big problems for the Atlantic Yards project.

Two unexpected events have recently arisen inside the footprint of Forest City Ratner’s proposed $4.9 billion development near Downtown Brooklyn, which project shall feature a basketball arena for the New Jersey Nets.

Forgotten Parcel Not Codemned?

A piece of property about the size of a standard one-bedroom apartment in the footprint of the Atlantic Yards site was never officially condemned, says attorney Matthew Brinckheroff in an action filed in Kings County Supreme Court on behalf of the property’s owner.
...

“Last week we wrote them and said, ‘You made a mistake,’” Brinckerhoff told the Eagle Tuesday. “ESDC [the state’s Empire State Development Corporation] said, ‘That’s not a piece of property; we already condemned it, even though we didn’t,’ and basically told us to go jump in a lake. So instead of jumping in a lake, we sued.”
...

Brinckerhoff pointed out that in the UDC’s 2006 documents, they clearly state that in the “event of any inconsistency between the street addresses and the tax blocks and lots, the block and lot information shall control.”

He said that under state law, UDC must now hold a public hearing to consider condemnation of this lot and issue its results.

New York, NY— On Tuesday, Peter Williams Enterprises, Inc. (“PWE”), a company owned by Peter Williams, filed an action in New York State Court seeking a declaration of its ownership of a tax lot on the block where Forest City Ratner plans to build an arena for its professional basketball team.

PWE owns the property located at 24 Sixth Avenue, Brooklyn, New York, specifically, the entirety of Block 1127, Lot 7501 (“Lot 7501”). Unlike the other lots located at 24 Sixth Avenue (Lots 1001-1021), which were condemned by the New York State Urban Development Corp (the “UDC”), and recently leased to a Forest City Ratner affiliate, the UDC did not condemn Lot 7501.

Indeed, the UDC did not identify Lot 7501 in either its Notice of Public Hearing, pursuant to Article 2 of the EDPL, dated July 24, 2006 (the “Notice”), or its Determination and Findings, pursuant to EDPL § 204, dated December 8, 2006 (the “Determination”). Both the Notice and the Determination identified the property subject to acquisition by condemnation by block and lot. Both listed Lots 1001-1021as the only lots UDC sought to acquire located at 24 Sixth Avenue. Both expressly provided that the “street addresses are included for ease of reference only,” and that in the “event of any inconsistency between the street addresses and the tax blocks and lots, the block and lot information shall control.” Because Lot 7501 was never identified, it cannot be, and has not been, taken eminent domain.

In the Complaint, PWE’s attorney, Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady, explained that: “If defendants want to acquire title to Lot 7501, they must do so through legal means. The UDC must follow the procedures set forth in the EDPL; it must hold a public hearing to consider condemnation of Lot 7501 and thereafter issue the predicate findings and determination. It cannot simply take that which it does not own.”

May 3, 2010

The slow buildout at Battery Park City, according to the ESDC, serves as an acceptable example for Atlantic Yards. Except it doesn't.

Atlantic Yards Report

So what do the attorneys for the Empire State Development Corporation (ESDC) say when faced with legal papers expressing dismay about potential 25 years of construction in Prospect Heights rather than the announced and promised ten years?

They say it would be unimportant, and point to the example of Battery Park City--even though the latter is more than four times as large, with several other key contrasts.

The statement comes in a motion arguing that Supreme Court Justice Marcy Friedman should not reopen the case in which she dismissed a challenge to the ESDC's 2009 approval of the Modified General Project Plan, though she criticized the ESDC’s “deplorable lack of transparency."
...

The truth about Battery Park City

Battery Park City is 92 acres, more than four time the 22-acre Atlantic Yards site, so the impact of staged development has been more attenuated.

It was built on a landfill, with no established neighborhood and longstanding street grid.

At Battery Park City, large portions of the 36 acres of open space were built first, while with Atlantic Yards, the buildings would come first.

Battery Park City involves multiple developers and multiple parcels, rather than a single developer controlling one site, choosing to move forward as it sees fit, with light penalties and many excuses for delay.

April 26, 2010

Stop The Pork Lawsuit Appeal To Be Heard

Ground Report
by Richard Cooper

The Stop The Pork Lawsuit whose butchery in the New York court I reported previously (Stop The Pork Lawsuit Butchered In Supreme Court) will have its appeal heard on Monday April 26th according to Buffalo attorney James Ostrowski. The lawsuit contends that corporate welfare in New York violates our state's constitution. I contributed to the legal fund and was added as one of the plaintiffs.

The suit names as defendants Governor Paterson, the Senate and Assembly leadership, the Empire State Development Corporation (ESDC) and various corporations, including IBM.

The Empire State Development Corporation is the principal driver in New York of both corporate welfare and eminent domain abuse, including Atlantic Yards and the NY Times headquarters scheme I dubbed Time$cam.

April 24, 2010

Atlantic Yards Still Faces Legal Loose Ends

GlobeSt.com
By Mark Fass

Activist Daniel Goldstein may have been the most visible and most vocal opponent of the Atlantic Yards project, but his settlement with the project’s developer, Forest City Ratner Cos., does not mark the end of the legal battle against the $4.9-billion development.

Goldstein agreed Wednesday to move out of his condemned apartment, step down from his position as spokesman of Develop Don’t Destroy Brooklyn and take his name off all pending Atlantic Yards litigation in exchange for $3 million. However, four actions intended to thwart the downtown Brooklyn project remain ongoing. Three of those actions have been dismissed at the trial level and plaintiffs have filed notice of appeal. The fourth has yet to be heard.

Two of the actions challenge the modified general plan affirmed in September 2009 by the Empire State Development Corp., the public authority that invoked condemnation. The petitioners, including DDDB, contended that because the construction of Atlantic Yards may take 25 years and the project’s environmental impact statement evaluated only a 10-year period, the development corporation should be required to prepare a supplemental statement.

April 21, 2010

Hearing at 9:30 am on "writ of assistance" sought by ESDC to compel Goldstein family and two businesses to leave

Atlantic Yards Report

Daniel Goldstein and his family are the last residential tenants facing eviction in the Atlantic Yards footprint, as the others have settled, according a statement issued by Forest City Ratner yesterday and picked up by the New York Daily News and the Brooklyn Paper.

The seven households either will get apartments in “the first new residential building at Atlantic Yards” or, on average,$80,000, plus $5,000 to assist with relocation, according to a statement from FCR executive MaryAnne Gilmartin.

Hearing this morning

That leaves Goldstein and two businesses--Pack It Away Storage and Henry Weinstein's office building and adjacent lots--to challenge the Empire State Development Corporation's motion at the condemnation hearing this morning.

It will be held before state Supreme Court Justice Abraham Gerges at Kings County Supreme Court, 320 Jay Street, 17th Floor, beginning at 9:30 am (and there's usually a considerable wait to get through security).

Accelerated schedule

The ESDC seeks a "writ of assistance" to compel the remaining condemnees to leave the Atlantic Yards footprint by May 17 under threat of eviction.

That's a rather accelerated schedule for eminent domain cases, given that Gerges's opinion was issued March 1, and, as I reported yesterday, the state has both low-balled Goldstein on the value of his condo and shown him apartments that are both much more expensive and with some serious drawbacks.

April 20, 2010

On the eve of a crucial court hearing regarding the fate of condemnees still in the Atlantic Yards footprint, the Empire State Development Corporation (ESDC) and Forest City Ratner (FCR) are arguing that the failure to evict those occupants by May 17 would cause "enormous harm" and significant financial losses to the developer.

It is unclear how many of the six households (15 people) and three businesses yet to reach agreements with the developer will resist the condemnation, but a response to those legal arguments--likely stating that this is unusually swift for a condemnation cast--will be filed tomorrow, before a 10 a.m. hearing before state Supreme Court Justice Abraham Gerges at Supreme Court in Brooklyn, 320 Jay Street.

According to my preliminary analysis, several ESDC/FCR claims overstate the damage anticipated, emphasize the costs without acknowledging significant subsidies, and fail to provide sufficient detail to establish the argument for speed.

ESDC attorney Charles Webb summarizes the argument made in an affidavit from the developer:

Delay in achieving vacant possession would halt work on the Project, causing enormous harm by (i) prolonging the time in which FCRC must carry the real property and the Project's overhead without generating income, which costs FCRC $6,700,000 per month, (b) prolonging the Nets basketball team's operating losses of approximately $35 million a per year arising from its New Jersey location, and (c) jeopardizing the delivery of 2,250 affordable housing units, and significant public amenities, including a new transit entrance and eight acres of publicly accessible open space.

Not only have the Empire State Development Corporation (ESDC) and its real estate consultants low-balled Atlantic Yards uber-opponent Daniel Goldstein regarding the value of his Pacific Street condominium, the only alternative apartments it has shown him are either part of a lawsuit-plagued complex or very close to the Atlantic Yards construction zone.

And while the ESDC's consultant provided a list of only five condos, a simple search of a real estate web site turns up dozens of potential purchases in Prospect Heights and adjacent neighborhoods.

The alternative apartments are listed in an affidavit that's part of an ESDC package of legal papers aiming to convince state Supreme Court Justice Abraham Gerges to evict all condemnees from the Atlantic Yards footprint by May 17. A hearing will be held Wednesday at 10 a.m. at Supreme Court in Brooklyn, 320 Jay Street.

Standoff

Goldstein, the spokesman for Develop Don't Destroy Brooklyn (DDDB), and his family are the last remaining occupants of a 31-unit condo building at 636 Pacific Street, a former warehouse converted in 2002.

The condo is in a crucial spot on the arena block, and Forest City Ratner, which is funding the condemnations, wants him out of there as soon as possible so his building can be demolished for construction.

So it would be in the interest of the state and FCR to ease his departure as quickly as possible, with an offer closer to market price and a longer list of alternatives. That hasn't happened.

NLG: Here's hoping that their mean-spirited parsimony costs Forest City many millions more.

Curtain to fall on last Atlantic Yards holdouts

Expected court order to seal the fate of the remaining 35 residents and businesses; Freddie's [sic] Bar on Dean Street, host of many an anti-project party, to close April 30.

Crain's NY Business
by Theresa Agovino

By May 17, all the people that live in or run businesses in the Atlantic Yards' footprint will be evicted, if the Empire State Development Corp. has its way.

On Wednesday, the ESDC will ask Brooklyn Supreme Court Judge Abraham Gerges to sign an order that will remove all occupants in the area where Forest City Ratner is slated to build a massive commercial, residential and retail project anchored by an 18,000-seat arena for the Nets on a 22-acre site. There are currently 32 residential occupants and 3 businesses remaining on the property acquired by the ESDC. Freddie's [sic] Bar on Dean Street, which hosted countless protests against the project over the last several years, will finally close its doors on April 30.

An ESDC spokeswoman said that the agency couldn't predict what date the judge would set or whether he would make a decision on Wednesday. However, she said that the agency didn't believe the date would be significantly later than May 17.

NoLandGrab: Forest City Ratner is "slated" to build an arena  it's anybody's guess as to the rest of it. And is it that hard for Crain's and Theresa Agovino to spell "Freddy's" correctly, a bar that's been around since Prohibition and which has figured prominently in the six-and-a-half-year-old Atlantic Yards saga?

April 13, 2010

Case challenging ESDC's 2006 eminent domain findings put on hold until May 12; ESDC asks for case to be moved or dismissed

Atlantic Yards Report

AYR reports on yesterday's Atlantic Yards hearing in state Supreme Court, at which a new hearing date was set: May 12th at 11 a.m.

The six plaintiffs--five of them already having seen title transfer to the Empire State Development Corporation (ESDC)--want the agency to issue a new Determination & Findings (D&F) to justify the use of eminent domain, given that Atlantic Yards has changed so much since the 2006 D&F was filed.

The ESDC wants to move the case from state Supreme Court Justice Marcy Friedman in Manhattan to Justice Abraham Gerges in Brooklyn, contending that, given that he's overseeing the condemnation process, it's the appropriate venue, and he's already resolved the issues in a very similar case.

Friedman said she would allow motions making such a request to be filed, but said that no inference should be drawn from her action. She also admonished the parties not to file any new motions without the "prior leave of the court."

Which judge sought

Last month, while ruling for the ESDC in a case challenging the agency's approval of the 2009 Modified General Project Plan, Friedman nevertheless criticized the ESDC's "deplorable lack of transparency."

Attorney Matthew Brinckerhoff

Brief hearing on last Atlantic Yards case is anticlimactic; more motions to be filed, with argument May 12

Atlantic Yards Report

Though certainly a vigorous argument over the merits of the last Atlantic Yards case to face an initial hearing (as opposed to an appeal) may be possible, it didn't happen this morning, as lawyers argued briefly about procedural issues, delaying an argument until May 12.

The Empire State Development Corporation wants to move the case from state Supreme Court Justice Marcy Friedman in Manhattan to Justice Abraham Gerges in Brooklyn, contending that, given that he's overseeing the condemnation process, it's the appropriate venue, and he's already resolved the issues in a similar case.

A lawyer for the property owners, however, says that that shouldn't happen because, among other things, one of the property owners in this case was not a party to the previous case and the legal grounds are different.

NoLandGrab: Far more likely, the ESDC and Forest City Ratner don't want to have Justice Friedman, who was seemingly quite skeptical of certain of their arguments in another recent case, decide their fates.

April 12, 2010

Oral argument today; court session begins at 9:30 am

Atlantic Yard Report

Will Supreme Court Justice Marcy Friedman start the case at 9:30 am or hear other cases/motions before then? I can't be certain, but there are several other cases facing motions, so it's a good bet there will be a delay.

Did Gerges decision in March moot final Atlantic Yards case? Same grounds, new context. Oral argument Monday should be vigorous.

The one extant Atlantic Yards lawsuit (not counting the effort to reopen another) approaches an oral argument at 9:30 am on Monday, April 12.

The suit (Williams vs. New York State Urban Development Corporation), filed by several property owners facing condemnation, challenges the Empire State Development Corporation's failure to issue a new Determination & Findings (D&F) based on the argument that the project changed so much from 2006--when it was supposed to be completed within a decade--that there was no longer a basis for an eminent domain finding.

After all, the Development Agreement signed last December 23 but not revealed until January 25, gives the developer six years to build the arena, 12 years to build Phase 1, 15 years to start construction of the platform, and 25 years to finish the project.

At essence is this:

This case presents the question of where – on the continuum from no changes to the factual basis for an [Eminent Domain Procedure Law] § 204 determination to profound material changes – a case must fall before those changes merit an order compelling a condemning authority to supplement, amend or renew its determination.

April 8, 2010

DDDB, allies aim to reopen case based on Development Agreement that gives Forest City 25 years to complete AY; ESDC claims those provisions trumped

Atlantic Yards Report

Pointing to the curious delay by the Empire State Development Corporation (ESDC) in releasing the Atlantic Yards Development Agreement until after a key January 19 oral argument in the case challenging the ESDC's 2009 approval of the project, Develop Don't Destroy Brooklyn (DDDB) and 19 community groups have asked that the case be reopened.

The Development Agreement, as I've written, gives developer Forest City Ratner 12 years to build Phase 1 and 25 years to build Phase 2. Meanwhile. the ESDC maintained the project would take a decade, a finding to which Supreme Court Justice Marcy Friedman reluctantly deferred in her March 10 ruling dismissing the case.

"ESDC's continuing use of the 10 year build-out was supported—albeit, in this court’s opinion, only minimally—by the factors articulated by ESDC," she wrote, with one of those factors being the ESDC's professed intention to ensure that Forest City Ratner used "commercially reasonable" efforts to finish the project in a decade.

However, wrote DDDB attorney Jeff Baker in an affirmation filed today:

As set forth below, ESDC did not obtain a commitment from FCR to use commercially reasonable efforts to complete the project by 2019 and in fact signed an agreement that extends the completion of project until at least 2035. Thus, where the Court previously found that ESDC’s rational [basis] was only “minimally” supported, since one of the essential elements is demonstrably false, the Court should reconsider its decision in light of the new evidence.
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Bad faith

The petitioners might have gone even farther, charging bad faith. Remember, the Development Agreement, signed December 23, 2009, was not released until January 25, about three weeks after ESDC spokeswoman Elizabeth Mitchell told me the documents would be made available.

ESDC response and defense

Mitchell told the Brooklyn Paper that the agency will oppose the motion and expects to prevail.

Still, the ESDC has offered a rather weak defense of the timeline discrepancy in a motion to dismiss the only extant case, which challenges the failure to issue a new Determination & Findings:

Their allegations... [of delay] are inconsistent with the plain terms of the Development Agreement, which requires that the Project be constructed in accordance with the 2009 MGPP. See Development Agreement at pp. 4-5 (“Project Description”); p. 10 (requiring that the 2009 MGPP requirements be satisfied); p. 4 (requiring that FCRC use commercially reasonable efforts to complete the entire Project by 2019); p. 21 (requiring that the Project “shall have not less than the required Project Site Affordable Housing Units,” a term defined at page 15 of Appendix A to mean the 2,250 affordable housing unit required by the 2009 MGPP).
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Baker noted that “commercially reasonable” appears in only one place, and is not defined.

The state development agency leading the Atlantic Yards project got a favorable ruling in a key opposition lawsuit by withholding information about the mega-development’s construction timetable from a judge, a new appeal filed today charges.

The missing information was contained in a “closing document” signed by the Empire State Development Corporation and developer Bruce Ratner that allows Ratner to take 25 years to finish the project, instead of the 10 years that the lawyers had argued during the suit itself.

That closing document was made public eight days after the case was heard by Judge Marcy Friedman — and project foes now claim that if she’d had all the information, she might have ruled differently.

Atlantic Yards will take over a quarter century to build, claims the lead opposition group in a new motion filed in court this week.

Develop Don’t Destroy Brooklyn (DDDB), the lead plaintiff in a lawsuit that was dismissed by the Manhattan Supreme Court earlier this year, has filed a new Motion to Reargue/Renew, asking the court to consider new evidence that DDDB claims was not available at the time of the oral argument in January.
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The Motion to Reargue/Renew, filed on Wednesday, has a return date of April 29 at 9:30 a.m. in the Manhattan Supreme Court.

Motion Follows New Evidence New York State Intentionally Omitted From Legal Record

New York, New York— The Empire State Development Corporation (ESDC) held back the critical Atlantic Yards Development Agreement from the public and the legal record.

These key governing documents provide ample evidence that Bruce Ratner's Atlantic Yards project would take at least 25 years to construct. ESDC did not release these documents to the public until after the January 19th oral argument in the case Develop Don't Destroy Brooklyn (DDDB) and 19 community groups had brought to challenge the September 2009 ESDC approval of the project.

In light of this new information, today the community groups filed a motion requesting that the court reconsider its decision to deny the community groups' challenge.

They've asked the Court (New York State Supreme Court, New York County) to reconsider its March 10th ruling and to allow oral argument that considers the revealing information in the omitted documents.

The ruling on the original case—which challenged the ESDC's September 2009 approval the Modified General Project Plan—hinged on whether or not there was a rational basis for the ESDC to claim the project would take ten years.

"Under the limited standard of SEQRA (State Environmental Quality Review Act) review, the court is constrained to hold that ESDC's elaboration of its reasons for using the 10 year build-out was supported — albeit, in this court's opinion, only minimally — by the factors articulated by ESDC." (Emphasis added.)

The Court had no choice but to ignore the crucial Development Agreement documents that prove the project would take at least 25 years, because the ESDC had not made them part of the public record, and had not accurately reflected the elements of that agreement.

If, as the Court ruled, the ESDC's rationale was "only minimally" supported before, it would seem that that minimal support erodes entirely due to the facts subsequently revealed in the Atlantic Yards Development Agreement.

In the motion filed today, the petitioners' argue that "where the Court previously found that ESDC's rationale was only ‘minimally' supported, since one of the essential elements is demonstrably false, the Court should reconsider its decision in light of the new evidence."

The "demonstrably false" element is that ESDC did not obtain a commitment from Forest City Ratner to complete the project in ten years (2019) but, rather, signed an agreement that actually extends the completion of the project until at least 2035.

"We think the Court will recognize that the ESDC's argument, and therefore the ruling, was egregiously incomplete, lacking the essential document that worked against their entire rationale that the project would take ten years. Reconsideration of the case is necessary because of the self-contradicting and revealing information ESDC intentionally held back from the Court and the public," said Develop Don't Destroy Brooklyn legal director Candace Carponter.

Oral argument on Article 78 lawsuit seeking to compel the Empire State Development Corporation (ESDC) to make new Eminent Domain Procedure Law (204) findings and determinations.

A number of property owners and tenants in the footprint brought this lawsuit in January 2010 arguing that the eminent domain takings were based on a 2006 approved plan that no longer exists. If the property seizures are going to occur, they must be for the drastically altered current plan—a basketball arena and one building—not for the project originally conceived with the promise of 2,250 affordable housing units, 16 towers and 10,000 jobs. The case argues that the ESDC must make new findings and determinations under the States's Eminent Domain Procedure Law.

April 12, 2010
9:30 AM
80 Centre Street, Manhattan
Some owners and tenants in the footprint brought this lawsuit in January 2010 arguing that the eminent domain takings were based on a plan that no longer exists -- if the takings are going to occur, they must be for the current plan, which is a basketball arena and one building, not for the project originally conceived with the promise of 2,250 affordable housing [units] and jobs. So the takings require new findings and determinations by ESDC. The suit is in Manhattan State Supreme Court.

March 11, 2010

Passing the buck: when it comes to Atlantic Yards, elected officials and judges say the other's responsible

Atlantic Yards Report

From state Supreme Court Justice Marcy Friedman's decision yesterday in the case challenging the Empire State Development Corporation's (ESDC) 2009 approval of the Atlantic Yards Modified General Project Plan:

At this late juncture, petitioners’ redress is a matter for the political will, and not for this court which is constrained, under the limited standard for SEQRA review, to reject petitioners’ challenge.

From Governor David Paterson's statement in response to a question on Tuesday:

"Since the project was already in implementation when I came into office, I waited for the Court of Appeals to make a decision, and they ruled the way they did."

That makes it look like, once Atlantic Yards got started, it had inevitable momentum.

But that's not so. After all, as I noted, it was a pretty "late juncture" when, last year, Forest City Ratner renegotiated deals with the ESDC and the Metropolitan Transportation Authority.

Big court win yesterday — groundbreaking today

The Brooklyn Paper
by Stephen Brown

Hours before Thursday’s groundbreaking ceremony for Bruce Ratner’s Barclays Center arena, a New York State Supreme Court judge ruled in the developer’s favor on what is the last of the major lawsuits against the mega-project.

Justice Marcy Friedman found that the Empire State Development Corporation acted within the law when it overhauled its Atlantic Yards construction plans last year — a revision that sweetened the deal for Ratner and allowed him to put down just $20 million for the Vanderbilt rail yards and pay the rest in installments through 2030.

But Friedman acknowledged that project opponents were justified in their criticism of the way ESDC handled Atlantic Yards.

“ESDC … lacked the candor that the public was entitled to expect, particularly in light of the scale of the project and its impact on the community,” Friedman wrote.

Candace Carponter, the legal director for Develop Don’t Destroy Brooklyn, one of the opposition groups on the case, said that the ruling only reinforced their stance that Ratner and his state partners were allowed to undertake the major project without a public process.

“That is the legacy and hallmark of Atlantic Yards,” said Carponter. “A total failure of democracy.”

March 10, 2010

Just this morning, I wrote that it was unlikely that the major remaining Atlantic Yards lawsuit, that challenging the Empire State Development Corporation’s (ESDC) September 2009 approval of the 2009 Modified General Project Plan (MGPP), would be embraced by a judge, given the enormous deference courts give to agencies like the ESDC.

Indeed, Justice Marcy Friedman today dismissed (PDF) that challenge, in cases brought by two coalitions of community groups, but did so with some scathing language, criticizing the ESDC’s “deplorable lack of transparency” and acknowledging that the ESDC’s use of a ten-year timeframe for the project buildout was supported “only minimally.”

As Develop Don’t Destroy Brooklyn noted, Friedman’s decision “ignores crucial development agreement documents that would prove otherwise, because the ESDC only released those documents after the legal record was closed”—in late January, I’d add, even though the documents were promised early in the month before the oral argument was to take place.

(According to the documents, the developer has 12 years to build Phase 1 and 25 years to build Phase 2.)

Although Judge Friedman ruled against the community’s petition, she criticized the Empire State Development Corporation’s rationale for continuing to rely on the previously-estimated ten-year build out as "marginally sufficient to survive judicial scrutiny under the limited SEQRA standard," and observed that ESDC’s review of the 2009 Modified General Project Plan "lacked the candor that the public was entitled to expect, particularly in light of the scale of the Project and its impact on the community." We couldn’t agree more.

Unfortunately, the judge was not able to consider documents from Atlantic Yards’ master closing because those documents weren’t made public until after the court hearing. The closing documents conclusively establish that the ESDC had no intention of requiring Forest City Ratner to deliver the project on the timeline that was described in the 2009 Modified General Project Plan.

It is now clear that the project the agency has agreed to allow the developer to build will have significantly greater environmental impacts and drastically reduced public benefits when compared to those the ESDC had previously disclosed. This sad state of affairs is compounded by the fact that the only environmental impacts studied were those flowing from the 2006 Plan, and the very governmental entities charged with protecting the public from adverse environmental impacts have effectively agreed to look the other way with respect to fifteen additional years of construction.

For now, Atlantic Yards continues to stand alone as a State project with no formal oversight or meaningful public representation in decision-making. However, now that the definitive agreements between ESDC and Forest City Ratner have been made public, the BrooklynSpeaks petitioners are considering further legal options, including seeking reconsideration in light of the new documentation or an appeal. It is long past time that the special treatment enjoyed by this developer end, and Atlantic Yards is brought onto the same playing field as other large ESDC projects.

DDDB PRESS RELEASE: A COMPLETE FAILURE OF DEMOCRACY

New York, New York—Though she decried the Atlantic Yards process undertaken by the unaccountable, unelected, governor-controlled Empire State Development Corporation (ESDC) as exhibiting a "deplorable lack of transparency" and "candor" a Manhattan State Supreme Court judge today ruled that the ESDC minimally complied with the law when it claimed that Bruce Ratner's megaproject would be completed in ten years.

The ruling on the case—which challenged the ESDC's September 2009 approval the Modified General Project Plan—hinged on whether or not there was a rational basis for the ESDC to claim the project would take ten years.

The judge's decision ignores crucial development agreement documents that would prove otherwise, because the ESDC only released those documents after the legal record was closed.

All experts (except for the one paid for by Forest City Ratner) agree that the project will take 20 years at minimum and documentation and agreements show the ESDC expects the project to take at least that long. Even the former ESDC chairwoman, Marisa Lago, said the project would take decades.

"It is a very sad day for this country, and especially New Yorkers, when a court recognizes that a government agency can make a decision that is completely bereft of transparency, defies the facts, is devoid of common sense and ignores the will of the people and yet the court claims it is powerless to do anything about it," said Develop Don't Destroy Brooklyn legal director Candace Carponter. "When the courts, the legislature and the governor won't hold unelected bureaucrats accountable for acting without reason or transparency, there is literally nowhere for citizens to turn."

"That is the legacy and hallmark of Atlantic Yards—a total failure of democracy."

Develop Don't Destroy Brooklyn and its 19 community group co-plaintiffs are reviewing the ruling and considering an appeal.

March 5, 2010

Fortunately, the white powder received yesterday at the Brooklyn Supreme Court building turned out to be less harmful than the white powder that's seemingly been falling non-stop from the sky for the past month.

Thursday a Brooklyn judge’s secretary opened an envelope and found a “suspicious white-powder substance” inside.

The alarming discovery, conjuring up decade-old memories of the anthrax-filled envelopes delivered in New York City after 9/11, prompted a large-scale emergency response and partial evacuation of the courthouse. According to David Bookstaver, spokesman for the Office of Court Administration, the white powder was later found to be “inert.”

The letter was sent to Brooklyn Supreme Court Justice Abraham G. Gerges, according to various reports. Some have speculated that the threatening package was sent in response to Justice Gerges’ judicial order that on Monday transferred title of the land at Atlantic Yards to the state via eminent domain.

Cops are looking for the menace who sent an envelope filled with a suspicious white powder to the offices of Judge Abraham Gerges, the jurist who cleared the last roadblock against the controversial Atlantic Yards Project earlier this week.
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By late Monday, cops were still trying to track down who sent the letter. It’s expected that investigators will be reviewing Gerges’ past and current cases, as well as his history in city government — he was a City Council member from 1974 to 1990 before he was elected to the bench.

Justice Abraham Gerges, the judge who last week gave the green light to the controversial Atlantic Yards development project, which will result in the displacement of Brooklyn residents from their homes over the next few months, received a suspicious white powder at the Supreme Court building on Jay Street today, causing the evacuation of the building.

So, what's up with that suspicious mailing to Kings County Supreme Court Justice Abrahama Gerges that caused an evacuation yesterday of one floor of a court building?
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Without a note or other evidence beyond an anonymous nasty comment on a web site that--like so many--makes little attempt to ensure credible discourse, we have no idea why the "white powder" was sent.

In comparison

Note that this incident has drawn more coverage than the news, contained in a Development Agreement made available only in late January, that developer Forest City Ratner has 12 years to build Phase 1 of the Atlantic Yards project and 25 years to build the project--both with generous options for extensions.

And lastly, yesterday the Kings County Supreme Court was evacuated when Justice Abraham G. Gerges received a package laced with a suspicious white powder. Atlantic Yards Report dissects speculations that the powder was sent as an anti-Atlantic Yards sentiment, and finds a lot of tenuous assumptions at work.

March 3, 2010

Nets arena groundbreaking set for next week after court ruling

Field of Schemes

It's not quite all over but the shouting, but just about: A New York state judge approved a court petition by the state (over landholder objections) to use eminent domain to seize land for the Nets' planned Brooklyn arena on Monday, clearing the way for construction to begin. Street closings are set to begin next Monday, with a ceremonial groundbreaking on March 11; as for evicting the remaining residents and businesses occupying buildings marked for demolition, the state Empire State Development Corporation says it "anticipates an orderly relocation taking place over the course of the next few months."

Barring a surprise injunction in one of the other remaining lawsuits, then, it looks like the Atlantic Yards project, or at least the Barclays Center piece of it, will be opening in Fall 2012 as planned — not as planned originally, mind you, but if you keep making enough predictions, one of them will be right.

Regulars at Freddy's Bar, who have already built a PBR guillotine and chained themselves to the bar to protest the pending demolition of their watering hole, said they won't give up without a fight. "There's chains on the bar and a lot of people will be buying handcuffs," said project opponent Steve de Seve. It's unclear if they'll also try to use those handcuffs to arrest Ratner, as they planned to do last month.

Bruce Ratner will officially break ground on his $1-billion Barclays Center on March 11, days after a crucial judicial ruling in his favor and slightly more than seven years after the project was first announced.

The ceremony in Prospect Heights will likely include Mayor Bloomberg and Atlantic Yards cheerleader-in-chief, Borough President Markowitz, wielding the ceremonial shovels.

If all goes as planned, the event will be the so-called “end of the beginning” of a project that was unveiled in 2003 and mired in delays and controversy since.

March 2, 2010

Atlantic Yards Land Grab: The Morning After

Here's a round-up of today's headlines related to yesterday's court decision transferring title to several private properties in the Atlantic Yards footprint to the Empire State Development Corporation  a placeholder for developer Forest City Ratner.

"The Atlantic Yards project has had a long and tortuous history, including numerous court challenges in several forums," a Brooklyn Supreme Court judge wrote Monday. Justice Abraham Gerges made this observation in the course of turning back one of these challenges; he ruled Monday in favor of the state in its December 2009 petition to seize properties within the footprint of the $5-billion Brooklyn mega-project.

​Get those shackles ready, Freddy's: Judge Abraham Gerges has denied what appears to be the last big appeal of the eminent domain seizures for the Atlantic Yards project.

Several businesses, including Freddy's, are denied all relief; others, including condo owner Daniel Goldstein, may file claims regarding compensation, but cannot expect to keep their property.

The judge swatted away several procedural claims, including an "unclean hands" claim of wrongful conduct in pursuit of the seizures: "Neither Ratner nor any of the affiliated companies involved in the Project are parties to this vesting proceeding, nor will a desire to realize a profit be construed as sufficient to establish conduct that is immoral, illegal or wrongful to any fair-minded person."

State officials said occupants will be evicted from their homes over the course of the next few months, though construction will begin in some areas before then. And — whaddya know? — these residents weren’t too pleased with the ruling. “It feels like I live in a state run by crooks,” Daniel Goldstein told the Daily News. And patrons of Freddy’s Bar have pledged to chain themselves to the storefront to protest the eviction.

More ugly news for the Brooklyn property owners fighting eminent domain abuse in the Atlantic Yards project. Yesterday Brooklyn Supreme Court Judge Abraham Gerges granted New York state’s petition to seize the holdout homes and businesses on behalf of real estate tycoon Bruce Ratner, who plans to build a new basketball stadium for the abysmal New Jersey Nets (a team Ratner co-owns).

Today Judge Gerges transferred title of the remaining properties in the Atlantic Yards footprint to the ESDC who will lease the entire project site- including the now de-mapped city streets - for $1.
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Dan and Shabnam knew this day was coming and handled it all very well.

In decision by Gerges allowing condemnation, unwillingness to evaluate significance of changes in AY benefits

Atlantic Yards Report

Norman Oder reviews Supreme Court Justice Abraham Gerges's decision and explains why NY State and developer Forest City Ratner can continue to move the goal posts for the Atlantic Yards timeline and public benefits, as long as no one in the judiciary seems to be able to stop them.

It may be that no court agrees to evaluate whether the changes in the benefits to the Atlantic Yards project are significant.

That's the import of Supreme Court Justice Abraham Gerges' decision upholding condemnation for the Atlantic Yards project. Gerges claimed that the claims should have been filed by October--an analysis that attorney Matthew Brinckerhoff, representing those resisting condemnation, said was wrong, as described below.

And Gerges's decision portends a similar outcome in a parallel case still pending, aiming to compel the Empire State Development Corporation (ESDC) to issue new Determinations and Findings (D&F) as a precursor to the use of eminent domain.
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What about the revised MTA deal that allows for a far longer time to acquire the site? The ESDC noted that a challenge to the deal had already been rejected in December.

Gerges wrote:

Moreover, petitioner asserts that the MTA business arrangement has no relevance to the validity of the 2006 D&F because those findings relate to the public purposes of the Project, which have not changed. They also note FCRC's obligations to ESDC are dictated not by a transaction with the MTA, but by the 2009 MGPP and the implementing agreements between FCRC and ESDC. The essential terms of the Development Agreement obligated FCRC to construct the Project as described in the 2009 MGPP and to use commercially reasonable efforts to do so by 2019.

Gerges wrote that challenges to condemnation on grounds of bad faith and/or lack of public purposes should be raised--as they had been--in a challenging to the finding of eminent domain, rather than the condemnation action.

Also, he agreed that the case known as Leichter, involving changes to the Times Square plan, disallowed challenges to a revised AY plan.

Gerges wrote:

It has already been determined that the petition adequately sets forth the public uses for which the subject property is needed. The court also finds, as argued by petitioner, that the public purpose to be served by the Project was not changed by the 2009 MGPP. Moreover, to the extent that the Project has changed, the above discussed holdings in Leichter and Toh Realty clearly establish that petitioner is not obligated to begin a de novo review proceeding... In this regard, it must also be noted that the numerous judicial challenges to the Project resulted in extensive delay, as was the case in Leichter. More significantly, it cannot be disputed that the economic conditions in which the Project was proposed in 2002 have changed drastically in that the world-wide economy is now in one of the worst downturns in history.

March 1, 2010

Go-ahead in Atlantic Yards land grab bid

Metro
by Amy Zimmer

Let the construction finally begin: Bruce Ratner’s $4.9 billion Atlantic Yards project can move forward after a state Supreme Court justice yesterday rejected a group of building owners’ and tenants’ challenge of the state’s use of eminent domain. Their legal fight against the project, claiming the condemnation was not for a public benefit but for the pockets of a private developer, lasted six years.

The Empire State Development Corporation, the state agency seizing the land, already announced permanent street closures to start next Monday.

The decision was a blow to many opponents, perhaps none more visible than Daniel Goldstein, the lone holdout in a Pacific Street condo in the project’s 22-acre footprint that will bring the arena and more than a dozen skyscrapers to Brooklyn.

Final Atlantic Yards holdouts to lose their property

NY Post
by Rich Calder

Reality is starting to set in for the final holdouts of the embattled Atlantic Yards project in Brooklyn.

A state judge ruled today that the state can seize property from 12 private landowners who refused to sell to developer Bruce Ratner, so he can move forward with his long-delayed, $4.9 billion plan to build an NBA arena, housing and office towers in Prospect Heights.

Ratner, who received state approval for Atlantic Yards in Dec. 2006, is now finally planning a ceremonial arena groundbreaking — March 11 — so his New Jersey Nets can move there by 2012. However, the timetable for the project’s 16 skyscrapers remains unclear because of the national credit crunch.

"I woke up this morning owning my home but by the afternoon I was told the state now owns it," said Daniel Goldstein, a holdout who became the public face of an opposition group that nearly killed the project by using the legal system to hold up construction.

Goldstein said his group isn’t giving up yet – they can still appeal the judge’s ruling and a few outstanding lawsuits could potentially halt development – but conceded he and his family must finally begin looking for a new place to live. Goldstein moved into the condo in 2003; months later Ratner announced his plans for Atlantic Yards.
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Bruce Bender, an executive vice president at Forest City Ratner, said the "ruling is a major milestone that signifies Atlantic Yards is progressing, that construction will accelerate and that long-awaited benefits will begin to materialize in Brooklyn."

The Nets will play their next two seasons at the Prudential Center in Newark after working out a deal to leave Izod Center and the Meadowlands. But the team still plans on being in a new arena in Brooklyn by the start of the 2012 season.

Atlantic Yards Project Clears Latest Hurdle

NY1 News

A state supreme court judge ruled Monday in favor of the developers of the Atlantic Yards project, saying they can seize control of 53 Prospect Heights properties surrounding the proposed Brooklyn site for the sports arena and development.

Supporters, including Brooklyn Borough President Marty Markowitz, hailed the decision, saying the project will increase affordable housing, provide solid jobs and bring a world class arena to the borough.

Not necessarily in that order.

In order for the Atlantic Yards project to move forward, Fifth Avenue between Flatbush and Atlantic, and Pacific Street between Fifth and Sixth and Vanderbilt and Carlton Avenues will be permanently closed to traffic starting next Monday.

State Owns Atlantic Yards; Brooklyn Homeowners’ Titles Taken

Those who own businesses or homes in the footprint of Atlantic Yards do not own them anymore.

The land of Atlantic Yards has been condemned. And title to that land has transferred, a Brooklyn judge ordered Monday morning.

Kings County Supreme Court Justice Abraham G. Gerges confirmed Monday afternoon that his judicial orders not only granted the right for the state to take title from the private landowners, but also effected the actual transfer of title to the state.

“New York state now owns my home,” said Daniel Goldstein, Pacific Street resident and spokesman for lead opposition group Develop Don’t Destroy Brooklyn (DDDB). “Technically, a court ruled that … it’s okay for the state to steal my home and give it to Bruce Ratner.”
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After years of lawsuits and litigation, after loud protests and verbal fights, after restructuring, refinancing, renaming and resizing, the Atlantic Yards process has yet to overcome all legal hurdles. Just when it seems the path is clear, another legal challenge rises up to block the construction cranes from building a project that was originally announced over six years ago.

Judge Approves Land Seizures for Atlantic Yards

The property seizures necessary for a new Brooklyn Nets basketball arena have been approved by a judge, clearing a path for a groundbreaking on the $4.9 billion Atlantic Yards project.

The action, for which the Brooklyn judge granted a state petition seeking the title of properties within the project's footprint, is one of the final few legal challenges opponents of the project and holdout landowners had thrown at the state in an attempt to block, or delay, the development.

In a project marked by incremental movements toward the start of construction, this one has a tangible effect: On March 8, the state announced, it will finally create its "superblocks," forever shutting down the streets within the project's footprint to make way for the development. In a statement, Develop Don't Destroy Brooklyn said the affected property owners and tenants "will be considering all of their legal options in light of today's ruling."

There are two other cases still pending that would stop the project, however they are not viewed by government officials or executives at Forest City Ratner, Atlantic Yards' developer, as likely to be successful.

Nets arena foes lose another court case

Bergen Record
by John Brennan

The New Jersey Nets inched another significant step toward Brooklyn on Monday, as a New York State Supreme Court judge ruled against every objection raised in a lawsuit by opponents of the proposed basketball arena, housing and commercial project known as Atlantic Yards.
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The ruling moves project developer Forest City Ratner and Nets owner Bruce Ratner closer to exercising eminent domain to evict the plaintiffs, as well as to receiving state approval to close several streets in the neighborhood near downtown Brooklyn, where the project is scheduled to be built. The Nets hope to begin play in their new Barclays Center arena in the fall of 2012, but construction must begin in earnest by this summer to allow for such a franchise shift.
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Gerges wrote that even if Goldstein’s cynicism about the actual public benefits proves to be well-placed, that is not the issue for the court. Instead, the court must simply find whether the state “rationally could have believed” that the use of eminent domain would lead to the achievements of the goals of the developers and the state.

Goldstein had pointed to a September 2009 analysis by the city’s Independent Budget Office that the arena would be a money loser for the city and that the developers are permitted to take up to 25 years to fulfill promises related to the construction of affordable housing at the project.

Gerges ruled that Goldstein has until Sept. 1 to file claims related to efforts to use eminent domain to take his condominium.

Judge Clears Hurdle for Atlantic Yards

City Room
by Charles V. Bagli

A justice in State Supreme Court paved the way Monday for the transfer of private land to the developer Bruce C. Ratner for his long-delayed $4.9 billion Atlantic Yards project in Brooklyn, after rejecting a challenge by local property owners to the state’s use of eminent domain.

Homeowners and business opposed to the condemnation, which was approved by the State Court of Appeals in November, had argued that the state and the developer had failed to meet the legal requirements for condemnation, which they argued would enrich a private developer rather than create a public benefit.

Justice Abraham G. Gerges, however, denied all of their motions in an 82-page decision.

The land is being seized by a state entity, the Empire State Development Corporation, and will be controlled by Mr. Ratner’s company, Forest City Ratner.
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But many of the 6,000 apartments that are to accompany the arena will have to wait. Although Mr. Ratner has pledged that at least 30 percent of the units would be reserved for moderate- and middle-income families, the developer said that it is difficult to finance residential construction in the current market. It may also take many years for a single neighborhood to absorb so many new apartments.

Court upholds AY eminent domain ruling

The Real Deal

Eminent domain has prevailed once again for Bruce Ratner's Atlantic Yards project in a New York State Supreme Court ruling today that clears the way for construction to begin on the Nets' new Barclays Center arena. According to the ruling, by Judge Abraham Gerges, the state can seize properties in the way of the project because the 14 claims brought forth by opponents of the plan had no "merit." Among the claims: that the state has not explicitly said the land slated for condemnation will be used for the public and that the project plan had been illegally modified.

Judge Rules Against Atlantic Yards Opponents

The state of New York has taken title to property owned by Daniel Goldstein and other holdouts living in or running businesses in the footprint of the future Atlantic Yards basketball arena.

Judge Abraham Gerges of state Supreme Court in Brooklyn said that all rules were followed when the Empire State Development Corporation moved to condemn the properties. The homeowners had raised a number of objections, one of which was that the project had changed substantially since getting state approval three years ago.

The ruling authorized the state to take title to the properties that remained in private hands but are needed for the arena. But it still could be weeks or months before the state compensates the owners and residents are ordered to leave.

It came from the Blogosphere... (Condemnation edition)

A State Supreme Court ruled this morning that eminent domain can go ahead in the footprint of the Atlantic Yards project, despite opponents' claims that the project plan had been illegally modified. The ruling applies to the buildings developer Bruce Ratner says he needs to seize immediately, including Daniel Goldstein's apartment building and the PBR guillotine-building Freddy's Bar. It's unclear exactly when Ratner will take the property, so, Freddy's folks, better pile those PBR cans while you still can.

NoLandGrab: The state is taking title, not "seizing" the actual property immediately. That won't happen for some time  if the remaining legal challenges fail.

Fightin' Freddy's is compiling a catalog of places to order handcuffs.

They say they are going to take Freddy's Bar. We say, get your handcuffs and come out for the (un)eviction party. We don't know the date yet. So order today. This catalog does not want to exclude anyone, so if you have a favorite handcuff website send it along. The Chains Of Justice are mounted on the bar at Freddys so you can keep drinking while we're fighting this unfair law.

The Brooklyn Paper is reporting that State Supreme Court Justice Abraham Gerges this morning ruled against property owners in the footprint of the Barclays Center, paving the way for Forest City Ratner to begin construction on arena. In one fell swoop, the judge rejected 14 claims by the owners as being meritless.

Critics had asked Judge Abraham Gerges to halt the process, claiming project plans had changed and a new plan was needed. The ESDC expects to move quickly to condemn the properties. Land must be cleared before the Nets sale to Mikhail Prokhorov can be finalized.

Gerges dismisses challenge to condemnation; no barrier to project construction; streets to close March 8

Atlantic Yards Report

After a month, Supreme Court Justice Abraham Gerges has dismissed a challenge to the condemnation of property needed for the Atlantic Yards project.

While there are other extant legal challenges, there's no bar to construction, and Forest City Ratner has said it would mobilize large numbers of workers shortly after the decision.

It was followed shortly afterward by a community notice stating that Fifth Avenue between Flatbush and Atlantic Avenues and Pacific Street between Fifth and Sixth Avenue and between Vanderbilt and Carlton avenues would close on Monday, March 8.

That's one-week notice; at a community meeting last week, a Department of Transportation official was unwilling to specify how much notice would be needed, while City Council Member Letitia James, a project opponent, asked for two weeks.

ESDC statement

The Empire State Development Corporation issued a statement:

ESDC is pleased with today’s ruling on the Atlantic Yards condemnation hearing by Justice Gerges of the Brooklyn Supreme Court, and is looking forward to moving ahead with a project that will bring an arena, open space, affordable housing, transportation improvements and thousands of jobs to Brooklyn.

The streets condemned by ESDC will be closed as of 6:00 am, Monday, March 8, 2010, giving the community a full 7-days notice in addition to the public notice first issued in early January. ESDC is coordinating with Forest City Ratner Companies and the Brooklyn Department of Transportation to update the relevant message boards and otherwise provide notice to the community. While no formal notice period is required under law, in hearing from the community and working with the Department of Transportation, ESDC believes this additional notice period will help the community prepare for anticipated traffic changes while not overly delaying the commencement of principal construction of this eagerly anticipated project.

In terms of those residents occupying condemned property, ESDC has been and will continue to work with occupants to relocate them and anticipates an orderly relocation taking place over the course of the next few months.

Click through for a statement from Brooklyn Borough President Marty Markowitz.

State development officials can seize properties in the footprint of developer Bruce Ratner’s Atlantic Yards project through eminent domain, a state court ruled on Monday morning, removing the most significant legal hurdle remaining before construction can begin on the Barclays Center arena.

New York State Supreme Court Justice Abraham Gerges ruled this morning that 14 claims asserted by condemnation opponents — including the timing of the condemnations, the legality of a modification of the Atlantic Yards project plan and even the state’s failure to use the words “public use” in a section over why the land is being condemned in the first place — had no “merit.”

Gerges’s ruling applies to properties that Ratner says he needs immediately to begin construction, including the home of project holdout Daniel Goldstein on Pacific Street and the building housing Freddy’s Bar on Dean Street.

The case was argued on Jan. 29. Gerges’s ruling was strictly on procedural grounds, contending that “the court is required to direct the immediate filing and entry of the order granting [the condemnations] unless there is merit to any of the [landowners’] defenses.”

With Gerges’s ruling, the street closures around the Barclays Center site will likely proceed quickly, though it is unclear when the actually taking of property will occur.

February 24, 2010

They were both long-shot efforts, but attempts by Develop Don't Destroy Brooklyn (DDDB) and plaintiffs organized by DDDB to reopen two key Atlantic Yards cases have been rejected [without comment] by the state Court of Appeals.

Thus the eminent domain case--but not the pending challenge to the actual condemnation--is over, as is the case challenging the environmental review.

This narrows the remaining court cases related to the project to three, though two are essentially versions of the same case.

Gov. David A. Paterson nominated Jonathan Lippman to head the New York Court of Appeals in January 2009, making him the chief judge of the state. The choice was a gamble: the judge, a longtime court administrator, did not have a long history of deciding cases, and there was almost no record of his political views.

Now, a year in, the parameters of the Lippman court are coming into focus: he has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. To get the rulings he wants, the decisions show, the new chief judge has built alliances case by case with each of the four judges who were nominated by the last Republican governor, George E. Pataki, cracking the conservative majority.

Looking more closely

I posted most of the following as comments on the Times's web site.

While the court may have moved to the left in certain areas, on the contentious issue of eminent domain--which now challenges ideological boundaries--the court most recently displayed great deference to the state, which is hardly a "left" position.

NoLandGrab: While deference to the state may not be a lefty position, permissiveness on the use (and abuse) of eminent domain is completely in step with liberal orthodoxy. Remember, the five most liberal Supreme Court justices at the time were in the majority onKelo, while the four most conservative justices firmly opposed New London's taking.

February 9, 2010

Would the Court of Appeals permit reargument of the Atlantic Yards case, given the Columbia appeal? It's a long shot, and we should know soon

Atlantic Yards Report

The unusual, long shot effort to get the state Court of Appeals to reopen the Atlantic Yards eminent domain case it dismissed in November could see a result as early as today, when the Court of Appeals resumes issuing decisions. Or it could linger for weeks or months.

Should the court agree to reargument of the appeal, or to simply hold it in abeyance until the not dissimilar Columbia University case is resolved, that could stay the pending decision by state Supreme Court Justice Abraham Gerges on an unusual challenge to the actual condemnation.

But if the court dismisses the motion, that would remove one of the few potential roadblocks--all long shots--to transfer of title should Gerges rule in favor of the Empire State Development Corporation (ESDC).

Forest City Ratner is proceeding--mostly--as if none of these cases poses a threat; it has signed contracts for arena construction and has continued utility work and demolition, but has not announced an official groundbreaking.

The Columbia opening

Let's recap. The AY case, known as Goldstein v. ESDC, was dismissed 6-1 in late November, with the majority opinion stating that it was the role of the Legislature, not the courts, to narrow the definition of blight and the dissenting judge saying the court was much too deferential to the ESDC.

Nine days later, a lower court, the Appellate Division, blocked the ESDC's use of eminent domain in the Columbia University expansion, in a case known as Kaur v. ESDC. While the ruling was 3-2, the two-judge plurality opinion slammed the ESDC for its use of consultant AKRF, its reliance on underutilization as an indicia of blight, and its indulgence toward a private developer.

While the fact pattern in the Columbia case is different from the AY case, the issues of underutilization and deference to the agency are similar. Then again, Judge James Catterson's plurality opinion ignored any reference to the judge-decided AY case, a glaring omission leaving open the option for a complete reversal.

But the Court of Appeals had already ruled against the ESDC in another Columbia case--regarding the agency's unwillingness to hand over documents requested via the Freedom fo Information Law--and may be disposed to looking carefully at its actions.

Courts, as institutions, are generally reluctant to admit that they just made mistakes, so the petitioners in the AY case have an uphill climb.

February 8, 2010

Perkins introduces bill to reform eminent domain by redefining blight; had provisions been enacted earlier, AY would have been blocked

Atlantic Yards Report

As previewed (Gotham Gazette, New York Times), State Senator Bill Perkins has introduced a sweeping bill (S. 6971) to redefine eminent domain by redefining blight--currently subsumed under the amorphous terms "substandard and insanitary."

Thus environmental consultants like AKRF inevitably find blight when so requested by agencies like the Empire State Development Corporation (ESDC).

The bill, which likely will gain both supporters and critics, is clearly a response to the efforts to use eminent domain in the cases of Atlantic Yards, Columbia University, and Willets Point. The bill's provisions aren't retroactive, but if they were, they almost certainly would've have precluded the use of eminent domain for the AY site.

New York is one of few states--perhaps seven--that failed to enact any reforms regarding eminent domain after the Supreme Court's controversial 2005 Kelo v. New London decision, and the libertarian Institute for Justice, which brought the Kelo case, considers New York "one of the worst" states in the country when it comes to eminent domain abuse.

Underutilization

Notably, the bill eliminates the opportunity for condemning authorities like the ESDC to cite underutilization--as it did in the Atlantic Yards and Columbia cases--as an indicia of blight.

Given that AKRF deemed properties occupying less than 60% of allowable development rights (Floor Area Ratio, or FAR) as blighted, that could potentially doom broad swaths of the city.

February 5, 2010

Looking back at the legal battles: the eminent domain cases over nearly three-and-a-half years

Atlantic Yards Report

With news on the Atlantic Yards front slow on a mid-winter Friday, Norman Oder decided to take a look back at the three-and-a-half year legal battle over the project's use of eminent domain.

The legal battles regarding the Atlantic Yards project are epic and, while nearing conclusion, hardly over. Here are some flashbacks to the arguments over eminent domain, first in federal court, later in state court.

I'll write at another time about the other cases, including those challenging the Empire State Development Corporation's (ESDC) environmental review, the revised Metropolitan Transportation Authority deal for the Vanderbilt Yard, and the ESDC's approval of the 2009 Modified General Project Plan.

January 30, 2010

Condemnation on hold after judge promises prompt review of claims; streets unlikely to close on February 1 - Updated

Atlantic Yards Report

Usually, NoLandGrab only posts a blog entry once, but this one by Norman Oder has been substantially updated and now provides blow-by-blow coverage of yesterday's condemnation hearing.

Here are choices for Justice Abe Gerges to choose from in ultimately ruling on this case:

Gerges's focus is on the narrow law of condemnation, so it would be unusual for him to allow argument on claims that the project has changed so much--and after the chance for public comment on such changes--that the ESDC should issue a new Determination & Findings.

So he could simply dismiss the new claims filed by property owners and leaseholders. Or he could ask the ESDC to revise the petition because of technical defects. Or--the longer shot--he could look at the broader claims, or hold this case in abeyance while another court examines those claims.

...

Here is Brinckerhoff on the need to reign in out-of-control agencies (such as the ESDC, tool of developer Bruce Ratner).

Brinckerhoff moved on to his analogy regarding the court's presumed unwillingness to transfer title if no financing were available. "What has happened is the fundamental equivalent of the project being abandoned," he said.

Gerges pointed out that courts are supposed to defer to legislative agency.

"There are limits to that deference," Brinckerhoff said, pointig to the unelected three ESDC board members who approved the plan, based on blight findings--including sidewalk cracks and underutilization--made by environmental consultant AKRF, which was slammed in the Columbia case.

"The reason we have courts is so they can rein in agencies when they go too far," he said.

"The only thing we know we're getting is an arena," he said, failing to acknowledge the one promised housing tower.

"And we know the arena is not a benefit to the public," he continued, pointing to New York City Independent Budget Office cost-benefit analysis that it would be a net loss to the city--a study to which the ESDC responded by pointing to its less rigorous benefit analysis, based significantly on taxes from that phantom office tower.

"We are entitled to raise these issues," Brinckerhoff said. "No court should stick its head in the sand. We'll go [to court] where we're told to go."

Property Seizure for Atlantic Yards Is Delayed

New York Times
By Colin Moynihan

The state’s planned seizure of property in Brooklyn to make way for the $4.9 billion Atlantic Yards project was delayed on Friday when a judge declined to rule immediately on the state’s request for final approval.

After hours of argument at a condemnation hearing by lawyers for property owners attempting to halt eminent-domain seizure and by lawyers for the state entity, the Empire State Development Corporation, that seeks to condemn the land, the judge, Abraham G. Gerges of State Supreme Court, told the lawyers, “We’ll get back to you.” He said he would rule “expeditiously.”

...

At the condemnation hearing, a lawyer for the property owners, Matthew D. Brinckerhoff, urged Justice Gerges to re-examine the project before granting the development corporation title to the properties, in the Prospect Heights neighborhood near Downtown Brooklyn.

“We are asking this court to be the only court thus far to allow us to raise issues that have transpired over the last three years,” he said. “The fact that they changed so much about this project has to be heard.”

Charles S. Webb III, a lawyer for the Empire State Development Corporation, responded by telling the judge that current plans by the developer, Forest City Ratner, were “virtually identical” to plans that the state approved in 2006. (Forest City Ratner was also the development partner of The New York Times Company in building its new Midtown headquarters.)

Atlantic Yards Condemnation Rests in Hands of Brooklyn Judge

Brooklyn Daily Eagle
By Samuel Newhouse

The fate of properties in the footprint of the proposed Atlantic Yards project is still in limbo after a condemnation hearing on Friday in Kings County Supreme Court. Brooklyn Supreme Court Justice Abraham G. Gerges decided not to issue a decision Friday, citing submissions as recent as the day of the hearing and the day before. A decision will be released “expeditiously,” Gerges said.

It was within the power of Justice Gerges to condemn the properties on Friday and transfer title to the Empire State Development Corporation (ESDC) – a state-run construction organization that would then lease the properties seized by eminent domain to developer Bruce Ratner.

Ratner’s company Forest City Ratner would then be able to build his multibillion dollar Atlantic Yards project at Atlantic and Flatbush avenues, which includes a NBA basketball arena for the New Jersey Nets to move to Brooklyn.

Community group Develop Don’t Destroy Brooklyn (DDDB) and home- and business-owners who will have their land seized by the state have filed a myriad of lawsuits to stop or modify Atlantic Yards. Several months ago, in the most high-profile case, New York’s highest court ruled that it is constitutional for the state to take the land in question.

...

One of the arguments by attorney Matthew Brinckerhoff (whose name is misspelled in the Brooklyn Eagle article) calls for a hard look at what really constitutes the proposed Atlantic Yards project.

Lead attorney for the plaintiffs Matthew Brinckeroff said that one of the reasons that the condemnation petition is defective is that changes to the Atlantic Yards project since December 2006 have never been considered by any court.

Brinckeroff said that according to the amended project plan released in September 2009 and other sources, changes to the Atlantic Yards project include a construction timeframe increase from 10 years to up to 25 years, the possible absence of affordable housing from the project, and the reduction of the project from 7.9 million square feet to 4 million square feet.

“The Court of Appeals never examined any of these issues,” Brinckeroff said, saying that a November 2009 decision by the state’s highest court was based entirely on plans and environmental reviews from before December 2006.

“Where on the continuum from nothing changing from December 2006 to everything changing from December 2006 do we get to be heard?”

January 29, 2010

Condemnation on hold after judge promises prompt review of claims; streets unlikely to close on February 1

Atlantic Yard Report

No, the Atlantic Yards condemnation case was not going to be simple, after all.

After nearly two hours of oft-contentious oral argument before Kings County Supreme Court Judge Abraham Gerges--argument that, according to counsel for the Empire State Development Corporation (ESDC) went well beyond the proceeding at hand--the judge chose not to rule on the motions and counter-motions filed in the last two days.

"While the court will proceed promptly, the parties are entitled to a review of their claims," Gerges said at the end of the hearing, promising to "proceed expeditiously."

That means, most likely, that streets planned for closure February 1 will not close, even though developer Forest City Ratner seeks the closure of Fifth Avenue between Flatbush and Atlantic avenues for sewer work needed before arena construction will go forward--and has said it wanted that street closed even if the case was delayed.
...

Gerges was not unskeptical about the claims raised by attorney Matthew Brinckerhoff, representing several footprint property owners and leaseholders, who argued that changes in the project after the ESDC's 2006 approval of the eminent domain Determination & Findings (D&F) were so significant that a new D&F was required.

Weren't such issues supposed to be dealt with in other cases, the judge asked.

Brinckerhoff pointed out that other courts considering AY-related cases had relied solely on the record as of December 2006. "The fact that they changed the project so much has to be considered by someone," he said.

He suggested, by way of example, a situation in which a D&F had been approved but there was absolutely no financing for a project. In such a case, despite the D&F, he said, a condemnation court would not have transferred title.

He said: "The question is: where on the continuum from nothing changing to everything changing do we get heard?"

Motion to dismiss condemnation raises procedural issues and larger argument that no findings were made for significantly changed (and delayed) project

Atlantic Yards Report

The condemnation hearing today in state Supreme Court could result in the Empire State Development Corporation (ESDC) taking title to property it needs in the Atlantic Yards footprint.

But attorneys for the property owners and leaseholders, in a case organized and funded by Develop Don't Destroy Brooklyn, are pressing both narrow and broad issues in their motion to dismiss the case. Most notably, they argue that the project has changed so much that the 2006 Determination & Findings (D&F) no longer stands.

It's an unusual challenge, breaking new ground, and thus hard to assess. Judges usually grant condemnation petitions. And judges usually hesitate to substitute their judgments for agencies like the ESDC

But AY has always been complicated, and the motion to dismiss (reproduced at bottom) makes some serious claims.

So, unless Justice Abraham Gerges decides that none of it is relevant, it could be a long hearing and/or a reason to allow much more time for further argument or an opportunity to consider dueling legal arguments.

Atlantic Yards Condemnation In Court Friday

Brooklyn Daily Eagle
By Ryan Thompson and Samuel Newhouse

The homes and buildings remaining in the footprint of the proposed Atlantic Yards development may finally get taken. Years after the state set out to acquire the property via eminent domain, the hearing that is expected to approve the condemnation is set for Friday in Brooklyn.

Kings County Supreme Court Justice Abraham G. Gerges is scheduled to preside over a hearing regarding a condemnation petition filed by Empire State Development Corp (ESDC). It’s the last step required for the state to take control of the land at Atlantic Yards, which the New York Court of Appeals ruled can be done via the constitutional use of eminent domain.

...

The Brooklyn Eagle thinks that attendance by members of the community at today's Condemnation Hearing constitutes packing the courtroom. Don't worry, attendance is a right and your interest is welcomed.

Members of grassroots group Develop Don’t Destroy Brooklyn (DDDB), which strongly opposes Atlantic Yards, are expected to pack the courtroom. DDDB spokesman and lead plaintiff in the eminent-domain case Daniel Goldstein said, “We will challenge the petition. It is defective in many respects.”

January 20, 2010

Lawyers: Yards neighbors will enjoy decades of blight

The Brooklyn Paper
by Stephen Brown

State officials condemned Prospect Heights to as much as 23 years of upheaval by ignoring the implications of giving Atlantic Yards developer Bruce Ratner more time to build his mega-development when they renegotiated their so-called sweetheart deal with the builder last summer, project opponents alleged in court on Tuesday.

Lawyers from a broad coalition of Atlantic Yards opponents made their argument in state Supreme Court in what is the final major case against the Empire State Development Corporation, the quasi-public agency supervising the project.

The plaintiffs’ main argument centered on what they believe is Ratner’s extended buildout for his 16-skyscraper residential, retail and arena project, which was originally supposed to be done by 2016.

The terms of the summer renegotiation allow Ratner to complete the project by 2031 — yet the state did not conduct a new environmental review to determine if such a long buildout would have dire consequences for the neighborhood.

Several Brooklyn civic and community organizations, joined by local elected representatives, argued in state court today that the Empire State Development Corporation improperly rushed through major changes to the Atlantic Yards project without legally required study.

The modified plan changed the schedule for construction, delaying the finished product by 17 years and deferring the creation of public space. It expands the size of the surface parking at the site, seemingly creating the “blight” that the state has used to justify the use of eminent domain in the first place. The effects of the expanded timeline on the surrounding neighborhoods were not studied in a Supplemental Environmental Impact Statement, ignoring the “hard look” required under state environmental law.

In addition to altering the construction plan, the suit contends that ESDC improperly ceded decision power over future changes to the development plan to Forest City Ratner, the developer.

In court argument over ESDC project approval, questions about the MTA's Vanderbilt Yard deal and the mysterious development agreement

Atlantic Yards Report

Well, if you'd read the papers in the lawsuits challenging the Empire State Development Corporation's (ESDC) approval of the 2009 Atlantic Yards Modified General Project Plan (MGPP), the two-hour-plus argument in court yesterday wasn't all too surprising.

But the reason some 70 people--mainly Atlantic Yards opponents including Council Member Letitia James), but also ESDC officials and Forest City Ratner executives--packed a state Supreme Court courtroom in Lower Manhattan is that the courts remain a wild card, a potential, if unlikely, brake on state power in such cases.

Justice Marcy Friedman asked marginally tougher questions of the ESDC attorney, but evinced no particular sympathies, maintaining a serious and skeptical mien throughout the proceeding.

She did not rule on a requested preliminary injunction that would stop current activities--demolition, railyard work, environmental remediation--but indicated she'd rule on the case in a few months, before significant construction.

So it's unlikely anything other than a symbolic groundbreaking would be held in the near future. Should the lawsuits succeed, the ESDC's Modified General Project Plan for AY would be annulled, as would be the subsequent resolutions and contracts--essentially setting the project back and, given the snag in arena bonds, dealing it a serious if not fatal blow.

January 19, 2010

After court says announced change was a mistake, Atlantic Yards condemnation case back on for January 29 hearing

Atlantic Yards Report

You really can't make this stuff up:

Never mind.

After an electronic court filing indicated that the Atlantic Yards condemnation case was postponed from January 29 to March 17 and with a different judge than anticipated, court officials today said that was a mistake and the case will proceed on January 29 before Justice Abraham Gerges.

Today, the Atlantic Yards legal saga hits another flashpoint, with oral argument at 2:30 pm in state Supreme Court in Manhattan, combining two similar cases, one brought by groups led by Develop Don't Destroy Brooklyn (DDDB) , and another brought by groups in BrooklynSpeaks.

The last major case to go before a judge--though there could be more--challenges the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan (MGPP), in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated, thus creating a 22-year timetable.

And while the case cannot formally stop the (now-postponed) condemnation plans, at least not without a stay or preliminary injunction, success could delay or even doom the project. The case will be heard by Justice Marcy Friedman.

On January 19, 2010 at 2:30 PM, New York Supreme Court Justice Marcy Friedman will hear arguments in a suit filed by several BrooklynSpeaks sponsors, elected officials and individuals challenging the approval of the Atlantic Yards Modified General Project Plan. The location of the hearing was changed this morning to Room 335, 60 Centre Street in Manhattan.

When suit was filed on November 19, Atlantic Yards’ developer, Forest City Ratner, spoke dismissively of the suit being just another in a string of litigation by project opponents. But the opposite is true. “BrooklynSpeaks’ member organizations have tried for three years to engage the Empire State Development Corporation (ESDC) regarding impacts of the Atlantic Yards project on the surrounding communities. This includes putting forth a thoughtful proposal for the governance of the project which proposed a strong advisory role for local elected officials and community residents currently excluded from any meaningful participation. We have been forced to litigate to make this project accountable,” stated Gib Veconi of the Prospect Heights Neighborhood Development Council.

Since the suit was filed, a mere two months ago, a chorus of new voices from across the political spectrum has risen in outrage over the questionable relationships between government agencies and private developers, including a State Appellate Division decision which struck down the use of eminent domain to acquire land for Columbia University; a new State law which brings oversight measures to the State’s public authorities (including the ESDC), an investigative hearing convened by State Senator Bill Perkins to look into ESDC’s role in both the Atlantic Yards and Columbia University land deals; and an indictment brought against a Yonkers city councilmember of taking a bribe in another Ratner project.

“New Yorkers have started to find out exactly how little Atlantic Yards’ promises of economic development and job creation are worth,” said Joanne Simon, spokesperson for BrooklynSpeaks. A few weeks before Christmas, 88 families at the Pacific Dean Annex shelter were told the facility would close on January 15th for demolition, with no relocation assistance offered by the developer. “This doesn’t bode well for the community and future actions by this developer. The public and our elected officials are seeing that the project has no effective oversight or benefits for Brooklyn,” said Deb Howard, Executive Director of Pratt Area Community Council.

More and more people agree—when it comes to the ESDC and Atlantic Yards, we’ve had enough. It’s long past time for accountability on the largest development in Brooklyn’s history or the largest sole source development in New York City history. Join us in bringing that message to court on January 19.

January 15, 2010

For its defense of case challenging AY project approval, ESDC relies on deference to documents still under wraps

Atlantic Yards Report

The last major Atlantic Yards case to go before a judge is the one challenging the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan (MGPP), in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated.

I'll have a broader preview before the court hearing next Tuesday, but first want to point to a key point of dispute between the ESDC and the groups (led by Develop Don't Destroy Brooklyn) bringing the case, which is consolidated with a similar suit brought by groups that are part of BrooklynSpeaks.

The petitioners assert that the Vanderbilt Yard deal points to a project that would last some 22 years rather than the promised ten years. The ESDC claims they're wrong, and buttresses its case by pointing to a set of documents that has not been made public.
...

No one other than representatives of the ESDC and Forest City Ratner have seen these documents. So how can they be fairly assessed?

January 13, 2010

newstracker: court to hear suit concerning Nets' brooklyn site

NorthJersey.com
By John Brennan

What's new: New York's Supreme Court is scheduled to hear oral arguments Tuesday in a lawsuit filed against developers who want to move the New Jersey Nets basketball team to a proposed Atlantic Yards project near downtown Brooklyn.
...
This suit contends that the Empire State Development Corp. — the state agency overseeing the project and also a party to the suit — improperly approved a modified general project plan last September.

January 11, 2010

Legal case challenging AY approval will be heard on January 19, not January 15

Atlantic Yards Report

While there are appeals requested and potential cases to be filed, the last major Atlantic Yards case to go before a judge is the one challenging the Empire State Development Corporation's (ESDC) September approval of the Modified General Project Plan, in part because the ESDC board was not (allegedly) told the details of how the deal for the Vanderbilt Yard was renegotiated.

That case will be heard not this Friday, as originally scheduled, but on January 19. Of course, developer Forest City Ratner and the ESDC are proceeding as if the case were meaningless (or its resolution not in question), and there's no formal bar to proceeding. Still, it could, at the least, send the project back for re-approval or, at the most, nullify the ESDC's approval.

January 8, 2010

From the U.S. Attorney on the Yonkers case: "the developer enlisted the [now-indicted] Jereis," but he "demanded" a consulting contract from FCR

Atlantic Yards Report

Forest City Ratner says it's not a target in the Yonkers corruption case involving former Council Member Sandy Annabi and former Republican Party Chair Zehy Jereis, but the U.S. Attorney wouldn't confirm that.

According to the prepared remarks for U.S. Attorney Preet Bharara, which I received today, the clues regarding FCR's role are contradictory; one sentence suggests FCR was a mover behind the alleged dirty deal, while another suggests that "Developer No. 2" might have been extorted:

In June, the developer enlisted Jereis, who had been providing Annabi with tens of thousands of dollars in secret payments, to get Councilwoman Annabi’s vote.

...And for his part, Jereis demanded, and received, a so-called consulting contract worth $60,000 a year from the Ridge Hill developer immediately after Councilwoman Annabi switched her vote.

Did FCR blow the whistle?

According to unnamed sources talking to the Daily News (as noted by DDDB), it looks like FCR was playing along:

At no time during these meetings and agreements with Jereis did Ratner go to the FBI, according to two sources familiar with the investigation.

January 7, 2010

Yonkers pol Sandy Annabi took bribe to OK Ratner deal, feds say

Has there ever been a more apropos federal indictment alias than Forest City Ratner's "Developer No. 2?"

Developer Bruce Ratner's company agreed to hire the cousin of a former Yonkers councilwoman if the pol dropped her opposition to one of his major projects, prosecutors and other sources say.

The stunning conflict emerged in the indictment Wednesday of Yonkers Councilwoman Sandy Annabi and her cousin Zehy Jereis, a former Yonkers official.

Annabi, Jereis and a local lawyer were hit with multiple charges, brought by Manhattan U.S. Attorney Preet Bharara, in a bribery and extortion scheme.

Ratner confirmed that his firm, Forest City Ratner, was the "Developer No. 2" named in the indictment. The project at issue was a huge residential/commercial project in Yonkers called Ridge Hill.

Annabi opposed Ratner's project. Then, in June 2006, Jereis was introduced to unnamed reps of Developer No. 2 who promised to arrange a meeting with Annabi, the indictment states.

After Jereis and Annabi met with Forest City reps at a Brooklyn restaurant, Jereis asked Forest City to give him a job, the indictment and sources state.

The potential quid pro quo emerged in a June 28, 2006, "agreement in principle" in which Developer No. 2 "agreed to give Jereis a job sometime after Annabi formally voted in favor of the Ridge Hill project," the indictment alleged.

Two weeks later, Annabi switched her vote. In October 2006, Developer No. 2 signed a contract hiring Jereis as a "real estate consultant" for $60,000 at $5,000 a month.

Jereis had no real estate experience and the contract was backdated two months.

Although the contract required Jereis to submit invoices, he didn't until word leaked of an FBI investigation in March 2007. Jereis then sent Forest City seven months worth of backdated invoices.

At no time during these meetings and agreements with Jereis did Ratner go to the FBI, according to two sources familiar with the investigation.

Oops! The Times forgot to mention that "Developer No. 2" was "Developer No. 1" of its Manhattan headquarters building!

A former Yonkers city councilwoman was indicted Wednesday on federal charges of accepting nearly $167,000 in cash and gifts in exchange for dropping her opposition to two contentious developments, including a $630 million project that is the city’s largest private undertaking.
...

The investigation began in 2008, about two years after Ms. Annabi voted to enable a $630 million residential and commercial project by Forest City Ratner known as Ridge Hill, to move forward. Shortly after Ms. Annabi cast her vote, Forest City hired Mr. Jereis as a consultant at $60,000 a year.

Although the indictment incriminates the unidentified developers, Bharara would not discuss why they were not named in the indictment or charged.
...

According to the indictment, the Ridge Hill developer, Forest City Ratner Cos., held a meeting with Jereis and Annabi during which Jereis asked for a consulting job. Annabi reversed her vote five days later and Jereis got a $60,000 position, it says.

Martin McGloin helped organize a group called Community First! to oppose the Ridge Hill Village project. McGloin said he was not surprised by the accusations against Annabi, who changed her opposition to both Ridge Hill and the Longfellow School at the last minute.

"I've read the indictment. Obviously they must have hard evidence for what they're putting in the indictment," McGloin said.

"There was a lot of back-room dealing among the council members with the developers," he said.

The town may reopen its lawsuit against the Ridge Hill development, saying the project's environmental impact study may have been compromised if former Yonkers Councilwoman Sandy Annabi took a bribe to support of the controversial development.

Greenburgh filed a suit against the developers over concerns with the size and traffic impact of the mixed-use Yonkers project near the town's border. The town settled the case in 2007, though town Supervisor Paul Feiner said he and other board members were still concerned about the traffic impact. Outside legal counsel specializing in land use advised the town to settle since the Yonkers City Council supported the project, Feiner said.
...

The Town Board could direct the town attorney to review possible legal action when it meets at 7:30 p.m. Wednesday at Town Hall, 177 Hillside Ave.

No one who has spent any time watching Yonkers and its sad Byzantine history of cronyism, greed and shady deal making believes that the deal to smooth the way for a couple of major developments could possibly begin and end with only a vain councilwoman and the two political hacks.

There must be more.
...

Preet Bharara, U.S. attorney for the Southern District said, at Wednesday's news conference that the federal investigation into Yonkers corruption is continuing. He did not discount the possibility of more indictments.

It’s really come to this. Things are so bad in the way of corruption, legislative gridlock and greed that David Paterson, the governor of the greatest state in the greatest country in the world, used his State of the State Address yesterday to lecture lawmakers on the myriad ways they’ve destroyed the people’s trust.
...

His address to the 212-member den of thieves came just an hour or so after a federal indictment was handed down in White Plains accusing former Yonkers City Councilwoman Sandy Annabi of accepting $166,000 in bribes to, in effect, help grease the wheels for two major development projects. One of them was the $600 million Ridge Hill project, a massive undertaking by the Forest City Ratner group, which is the same outift, incidentally, that is remaking an entire neighborhood in Brooklyn.

Ridge Hill will now forever be associated with corruption—that’s how critical Annabi’s vote was. If the allegations against her hold up, then it can always be said that Yonkers can bought for the price of a condo, a Rolex watch and a couple of vacation trips.

January 6, 2010

Update: FCR says it's not a target

Norman Oder has amended his earlier post on federal indictments connected to Forest City Ratner's Ridge Hill project with the following:

Update: FCR says it's not a target

"Forest City Ratner Companies has cooperated fully with the U.S. Attorney's Office during the course of its investigation and will continue to do so. In addition, Forest City has been advised by the U.S. Attorney's Office that neither the company nor any of its employees is a target of the investigation," said Ed Tagliaferri, Senior VP, Dan Klores Communications, in a statement.

Note that the U.S. Attorney's Office would not comment when I earlier asked the same question. After I received the statement from Tagliaferri, I asked the U.S. Attorney's Office to confirm that "neither the company nor any of its employees is a target," and was told there was no comment.

NoLandGrab: What, FCR worry? Let's keep in mind that the U.S. Attorney alleges that Forest City promised and then delivered a consulting contract to the guy who bribed a Yonkers Councilmember to change her vote and approve their project.

A former City Council member in Yonkers and two others were indicted Wednesday on charges of corruption in a case that may have links with Brooklyn development firm Forest City Ratner. The investigation by the U.S. Attorney's office centers around Yonkers Councilwoman Sandy Annabi, and two individuals who allegedly helped convince her to sell her votes on two development projects: Zehy Jeries, former head of the Yonkers Republican Party, and Anthony Mangone, an attorney.

One of those projects' developers appears to be Forest City Ratner, in connection with its planned Ridge Hill mixed-use project. Forest City was not named directly or charged in the indictment, with the papers referring only to "Developer No. 2" as the developer of Ridge Hill.

The indictment alleges that Developer No. 2 gave Mr. Jeries a consulting contract worth $60,000 in exchange for swinging Ms. Annabi to vote for the project. Ms. Annabi previously had been opposed to the project, though ultimately voted in its favor, after Forest City agreed to numerous concessions including paying more property taxes. Mr. Jeries also is charged with giving Ms. Annabi a $70,000 loan and more than $50,000 in other financial benefits from 2004 to 2008. (Ms. Annabi and Mr. Jeries are cousins.)

Forest City Ratner, currently trying to ram Atlantic Yards down Brooklyn's throat, is unnamed and unindicted and unmentioned even in the U.S. Attorney's official statement. But the case centers on its controversial Ridge Hill development. (Indictment here; "Developer No. 2" is Forest City Ratner.)
...

All suspects are innocent until they're proven guilty or unless they somehow wriggle off the hook. Except for the New Jersey Nets, the condemned property owned by Bruce Ratner. The NBA team is currently 3-31, and not even eminent domain can save it.

December 17, 2009

Judge, deferring to MTA version of the case, dismisses lawsuit challenging revision of Vanderbilt Yard deal

Atlantic Yards Report

We already knew that private property in New York State is only "private" to the extent that somebody richer and more powerful than you doesn't have designs on it, but now it seems that it's okay for government bureaucrats to give the rich and powerful our public assets, too.

Norman Oder reports on yesterday's court decision.

State Supreme Court Justice Michael Stallman, in a ruling issued yesterday, dismissed the case. He wrote that not only did the plaintiffs--AY opponents Develop Don't Destroy Brooklyn, joined by four elected officials and the Straphangers Campaign--not have standing to challenge the alleged violation of the Public Authorities Accountability Act (PAAA), even with standing they couldn't make their case.

They charged that the PAAA, passed in 2005, requires an independent appraisal of the property and that a seller seek out competitive offers.

DDDB said it was considering an appeal and pointed to the MTA's willingness to leave $80 million on the table--money the agency asserts it will ultimately get--at a time of severe service cuts.

Stallman, in deferring to the MTA's version of the case, agreed that the limited response to the original 2005 RFP--only Extell responded along with Forest City Ratner--was due to "the unusual nature and scope of the project" rather than FCR's inside track.

Agreeing with the MTA

Stallman agreed with the MTA that the original plan and revised deal were essentially the same, subject to two modifications: the $100 million price would instead be $20 million down for the arena block, with the rest paid over 22 years, and the replacement railyard was value-engineered.

He also agreed that the process by which only two developers answered the RFP in 2005 was fair.

He left out the generous 6.5% interest rate granted Forest City Ratner and the extended time to operate a temporary railyard. He didn't comment on the rather surprising suggestion, by MTA CFO Garry Dellaverson, that FCR had the MTA over a barrel, rather than vice versa, given the developer's need to get the deal done in order to reap tax-exempt bonds by the end of the year.

Read on for more of Judge Stallman's rationalizations, including his ruling that the public has no standing to sue to stop the giving away of public assets.

A state judge today sided with the MTA in a lawsuit challenging a "sweetheart deal" it gave developer Bruce Ratner to bail out his controversial Atlantic Yards project that includes an NBA arena for Brooklyn.

The suit, filed by several lawmakers and other project opponents, sought to annul the Metropolitan Transportation Authority’s revised deal with Ratner in June that allows the developer to pay off $100 million he owes the agency over 22 years for the 8.5-acre Vanderbilt rail yard site in Prospect Heights and also shave off more than $100 million of the $345 million in transit improvements he had promised there.

It also alleged the cash-strapped agency violated the Public Authorities Accountability Act by failing to obtain an independent appraisal of the site or solicit competitive offers before agreeing to a new deal.

But Judge Michael Stallman in his decision wrote the petitioners didn’t prove the revised plan "gives the MTA less than the estimated market value" or that the MTA "did not attempt to obtain competitive offers."

More bad news on the Atlantic Yards front. Today a New York court upheld the Metropolitan Transit Authority’s (MTA) controversial deal allowing Atlantic Yards developer Bruce Ratner to acquire a crucial 8-acre rail yard for just $20 million upfront and $80 million due over the next 22 years. Remember that the MTA first struck a deal with Ratner for the property back in 2005—but without first opening the land up to competitive bidding as state law requires.

December 16, 2009

NEW YORK, NY — On the same day that the MTA Board approved severe service cuts—including Access-A-Ride and discounts for school kids—a New York State Supreme Court ruled against petitioners who challenged the MTA's sweetheart deal for the Vanderbilt Rail Yards with developer Bruce Ratner.

This past summer the now "unexpectedly" cash-strapped MTA left $80 million on the table when it "negotiated" a new deal with Ratner for the 8-acre yards. Instead of paying $100 million as he had agreed in 2005, Ratner would now, after Board approval, pay only $20 million.

The lawsuit (Montgomery et al. v. MTA et al.) brought by State Senator Velmanette Montgomery, Assemblyman Jim Brennan, Councilmember Letitia James, the Straphanger's Campaign and Develop Don't Destroy Brooklyn, charged that the MTA violated the Public Authorities Accountability Act of 2005 when it did not test the market for competition for the Yards or issue an independent appraisal for the piece of valuable central Brooklyn real estate.

The MTA's deal also clearly violates the letter and the spirit of the new Public Authorities Reform bill signed last week by Governor Paterson. As The Times reported, "…authorities will no longer be allowed to sell real estate for below-market value, as the Metropolitan Transportation Authority did when it sold rights to build over railyards in Brooklyn to the developers of the Atlantic Yards project."

Just last week New York City announced that it has 29 developers interested in "redeveloping" the 62-acre Willets Point, Queens district it wants to take by eminent domain. Yet the MTA claimed that it was impossible to find any interested developers, besides Ratner, for the 8-acre site in the heart of Brooklyn. Not one.

"The MTA has no shame—while giving a sweetheart deal to billionaire developers, leaving at least $80 million on the table and widening its budget gap, its Board gives a big lump of coal to school kids, disabled New Yorkers and all transit riders. It's disgusting," said DDDB's spokesman Daniel Goldstein. "It's just one more plaque for the Atlantic Yards hall of shame, in the no-bid wing. MTA gives it away, Ratner wins and the public loses. For what? A money-losing arena in the middle of a fiscal crisis. We'd like to hear Governor Paterson, Mayor Bloomberg and Speaker Quinn justify this. While the Court has ruled, these leaders can do the right thing by New Yorkers, and collect the full $100 million Ratner reneged on."

The petitioners will review the decision and decide whether or no to appeal the Court's ruling.

Still more EMINENT DOMAINIA: The Big Apple Bites!

It should not be a huge surprise that the Times ends up cheerleading for the wrong team in both of these cases. As you may recall, the paper was the private beneficiary of a similar eminent domain action (as noted here), so at least it cannot be accused of being inconsistent. But let's give the editorial board the benefit of the doubt and assume that its opinion wasn't driven by crass self-interest, but by a genuine belief that the Kaur decision "conflicts with the relevant law."

It is still wrong.
...

When the Times castigates the Kaur opinion as "weakly reasoned," you have to wonder whether the editors read the same decision we did, since all Kaur did was look at the facts. Unlike Goldstein, the Kaur court did not ignore Kelo's baseline and refuse to even look at the facts in the record. Goldstein washed its hands of the inquiry, holding that courts must accept an agency's determination that a parcel is in fact blighted. How Goldstein's interpretation of the New York Constitution's public use clause is above Kelo's Fifth Amendment baseline was never explained by the court.
...

Thus, the Times editorial is 180 degrees off the mark: it is the Court of Appeals' abdication of the rule of law in Goldstein -- and not the Appellate Division's opinion in Kaur -- which "conflicts with the relevant law," and which is is "completely out of step with eminent domain law."

These cases highlight just how much of a mess eminent domain proceedings are in the wake of 2005’s U.S. Supreme Court decision Kelo v. City of New London. Supreme Court decisions are no stranger to controversy, but the outrage surrounding Kelo transcended party or ideology, and led to forty-three states adopting restrictions on their own eminent domain powers.

New York, of course, is one of the seven "holdouts."

In the Brooklyn case, the issue is identical to Kelo. Bruce Ratner wants to tear down a significant portion of a vibrant neighborhood, and replace it with private economic developments including office towers, a shopping complex, and a basketball arena, which will likely be financed with a significant public subsidy.
...

The majority’s reliance on the ESDC study is quite controversial, because it’s quite possible that the ESDC has significant conflicts of interest, if not outright corruption. These problems came to light in the Columbia University case.

Last Friday, an appeals court blocked New York State from seizing private property in order to further the planned $6.3 billion expansion of Columbia University. The 3–2 ruling by the Appellate Division of State Supreme Court in Manhattan backed charges against the Empire State Development Corporation (ESDC), saying that by allowing the use of eminent domain, ESDC was giving the Ivy League school an unfair advantage over commercial property owners of the land.

December 10, 2009

Plaintiffs in Atlantic Yards eminent domain lawsuit ask Court of Appeals to reopen case given appeal in similar Columbia case

Atlantic Yards Report

Like a kindly teacher who gives a failing student an opportunity to re-take a test, the plaintiffs in the Atlantic Yards eminent domain case are willing to give the New York State Court of Appeals a second chance to get things right.

In an unusual, long-shot effort to reopen a case seemingly closed, attorneys for the plaintiffs--nine residential and commercial property owners and tenants--in the Atlantic Yards eminent domain litigation are asking the Court of Appeals to take a second look.

Why? A lower court's ruling against the use of eminent domain case for the Columbia University expansion will force the Court of Appeals to revisit the Empire State Development Corporation's (ESDC) application of allegedly arbitrary blight standards.

"We do not bring this motion for reargument lightly," said attorney Matthew Brinckerhoff in a press release from Develop Don't Destroy Brooklyn, which has organized and funded the lawsuit. "But this is an extraordinary situation. It's not every day that a court rules that the ESDC has conspired with an influential private party to violate the constitutional right to property."

"Given the Columbia and Atlantic Yards rulings, no one knows whether their property is now vulnerable to the ESDC engaging in the same pattern," he said. "We need clarity concerning the ESDC's fraudulent abuse of the ‘blight' issue. The ESDC has been unmasked as a serial eminent domain abuser. We've reached a tipping point where that agency's actions regarding condemnation have lost all legitimacy."
...

Potential results

1) The motion could simply be rejected.

2) It could be accepted, and the 3-2 decision in the Columbia case--known as Kaur--could be overturned, based on the decision in the Atlantic Yards case, which gave seemingly unlimited authority to the ESDC to decide on blight. (That's what Greg David of Crain's thinks.)

3) It could be accepted, and the Columbia case could be upheld, but on narrow grounds, such as bad faith--the ESDC's use of three separate blight studies--not available on the AY case. That would leave the ESDC to proceed with condemnation.

4) Or it could be accepted, and the Court of Appeals could uphold the Columbia case on broad grounds, declaring the blight standard to be vague and its application improper. That's what the Atlantic Yards plaintiffs are hoping for.

Following a surprise court decision last week that ruled as unconstitutional the use of eminent domain for Columbia University's West Harlem expansion, opponents of the giant Brooklyn development today appealed again to the state's top court.

Eminent Domain Ruling Against ESDC/Columbia Gives New Life to Brooklyn Owners and Tenants Fighting to Save Their Homes and Businesses

BROOKLYN, NY — The Atlantic Yards eminent domain issue will not go away. The legal fight against the Empire State Development Corporation's use of eminent domain to seize Brooklyn homes and businesses so developer Forest City Ratner can build a private arena and luxury condominiums continues.

Today plaintiffs in the Atlantic Yards case (Goldstein et al v. NY Urban Development Corp.) are asking the Court of Appeals to reconsider its November 24 decision, and specifically requesting that the Court hold any final decision on today's motion and appeal until the Court rules on the Columbia eminent domain case, which it will hear early next year.

The Appellate Division, First Department's, December 3rd ruling (Kaur v. NY Urban Development Corp.) in favor of property owners found that the Empire State Development Corporation engaged in a scheme to seize their properties by eminent domain for Columbia University's expansion plan. The ruling is the first to date that has exposed the ESDC's illegal activity and it has created confusion in New York's courts regarding eminent domain and "blight."

"We do not bring this motion for reargument lightly. But this is an extraordinary situation. It's not every day that a court rules that the ESDC has conspired with an influential private party to violate the constitutional right to property" said Matthew Brinckerhoff, an attorney representing the Brooklyn plaintiffs. "Given the Columbia and Atlantic Yards rulings, no one knows whether their property is now vulnerable to the ESDC engaging in the same pattern. We need clarity concerning the ESDC's fraudulent abuse of the ‘blight' issue. . The ESDC has been unmasked as a serial eminent domain abuser. We've reached a tipping point where that agency's actions regarding condemnation have lost all legitimacy."

The Columbia ruling, in stark contrast to the Atlantic Yards ruling only nine days prior, presents an extraordinary and compelling situation warranting reargument in the State's high Court. The ESDC's blight determination in the Columbia case was thrown out in a 3-2 decision that deemed it to be nothing more than "sophistry" and "idiocy." The post-hoc justification of blight to allow for what is an impermissible private taking of private property by ESDC, is the same in both cases. There is no common understanding or standard criteria used by ESDC and its blight consultant AKRF—in each case paid by the developers—to determine what "blight" is.

The ESDC in furtherance of Columbia's scheme and Forest City Ratner's scheme, found so-called "blight" precisely where the university and Ratner asked them to, and found it years after each had introduced their plans to remove neighborhoods for their benefit.

The situation now is that "blight" means whatever the agency and its consultant, on behalf of private developers, says it means.

December 9, 2009

As challenge to MTA deal awaits a judge, did Forest City Ratner really have the MTA over a barrel, or was it the other way around?

Atlantic Yards Report

Here's a must-read piece from Norman Oder on the lawsuit challenging the giveaway sale of the Vanderbilt Yard to Forest City Ratner.

All the legal papers have been filed in the case challenging the Metropolitan Transportation Authority's revision of the Vanderbilt Yard deal with Forest City Ratner. As we await a decision by the judge--no oral argument is expected, and a decision could take weeks--two things must be kept in mind.

First, as the MTA reminds state Supreme Court Justice Michael Stallman, the standards of review in such an Article 78 proceeding is "highly deferential to agency action."

So, no matter the facts, it's an uphill climb for the plaintiffs, AY opponent Develop Don't Destroy Brooklyn, joined by four elected officials and the Straphangers Campaign, in charging that a state law (the Public Authorities Accountability Act, or PAAA) passed in 2005 requires an independent appraisal of the property and that a seller seek out competitive offers.

If successful, the lawsuit (which also names Forest City Ratner as a defendant) could force the MTA to seek a new bid for the railyard. But the lawsuit is not seen by state officials as stopping either the bond sale or the pursuit of eminent domain.
...

Who's over a barrel?

In the MTA's eyes, Forest City Ratner had the agency over a barrel. That's why the MTA didn't get a new appraisal of the railyard, figuring a new valuation—due to the decline in real estate values and the increased cost of building a platform--would inevitably be less than in 2005, exposing it to a worse deal.

But maybe it was the other way around. Didn't the MTA have Forest City over a barrel?

The developer--well, its principal and its parent--has a major stake in the money-losing Nets basketball team that it wants desperately to move. The developer faces a December 31, 2009 deadline to get tax-exempt bonds issued for the Atlantic Yards arena. In April, in fact, a FCR executive privately confessed to being "a freaked out developer with an arena that must start this year."

As the suit noted, Dellaverson acknowledged that the transaction had to be approved quickly--the board had 48 hours--because, as he said at a June 22 MTA Finance Committee meeting, "it really relates to Forest City's desire to market their bonds as a tax-exempt issuance [by a December 31 deadline]."

December 8, 2009

Brooklyn Broadside: Two Decisions Will Change Downtown; One Still Awaited

A while back, I noted that there would be two major decisions made in November that would impact development in Brooklyn. These happened, but one of them was a decision not to make a decision. And there was a third decision that few knew was coming.

One of the decisions was made by the state’s highest court. It said, briefly, that Forest City Ratner could use eminent domain to acquire a few properties to build a basketball arena for the Nets.

This pretty much winds up that major legal issue, and other decisions about this part of Atlantic Yards have been made. The state approved the issuance of both tax-exempt and taxable bonds to help build the arena. Rating agencies have subsequently given an investment-grade score for the issuance of those bonds, and they are expected to be sold this week.

It has also been announced that Barclay’s Bank has decreased by $200 million its contribution to the signing aspects of the entire property around the arena. The court’s decision will help Forest City to put together an appropriate financing package.

December 7, 2009

Which court ruling is better for NYC: Atlantic Yards or Columbia?

Crain's NY Business

A New York state appeals court ruled Thursday that the state cannot use eminent domain on behalf of Columbia University to condemn land the school wants for its $6 billion expansion plan. It called the use of eminent domain unconstitutional and questioned the state and university's claims that the West Harlem area is blighted. The decision comes less than a month after another court ruled in favor of developer Forest City Ratner using eminent domain to complete its $4.9 billion Atlantic Yards project. That Brooklyn project includes a 22-acre residential development and a basketball arena.

Which ruling was better for New York City?

→ Columbia. The university and state failed to prove that the area in question is blighted, a requirement for eminent domain.

→ Atlantic Yards. The Brooklyn project will boost the local economy.

→ Neither. Until it becomes more transparent, the eminent domain process is bad for the city, no matter what project it affects.

December 6, 2009

Definition of public good

Crain's NY Business, Letters

Crain's is wrong on key points in its Nov. 30 editorial, “Affirming Atlantic Yards.” As Norman Oder puts it in his thorough, in-depth blog, Atlantic Yards Report: “The Court of Appeals did not endorse the public good. It chose not to substitute its judgment for the Empire State Development Corp.'s questionable—but still "rational'—determination of the public good. Nor have "elected officials' implemented development plans.”

This deal is backdoor in so many ways, and that is why this “holdout” is joining 4,700 others in supporting Develop Don't Destroy Brooklyn in its legal fight.

December 4, 2009

Lawyer who won Columbia case "cautiously optimistic" about surviving appeal, says creation of record key to win

Atlantic Yards Report

So, can yesterday's surprising 3-2 Appellate Division decision blocking the Empire State Development Corporation's (ESDC) pursuit of eminent domain for the Columbia University expansion plan be upheld at the Court of Appeals?

"I'm cautiously optimistic," plaintiffs' attorney Norman Siegel said in an interview last night, mindful that Justice James Catterson's opinion ignored the Court of Appeals decision last week upholding the ESDC's use of eminent domain in the Atlantic Yards case. "We really have to change the law of New York, and Catterson's decision could be a catalyst."

"We have huge challenges facing us," he acknowledged, given that the Court of Appeals would have to essentially change course. "I'm aware, as a litigator, that this is a win for December 3, and we have to go to Albany, but I know how to get to Albany."

He argued just a few weeks ago at the Court of Appeals on an ancillary case regarding the ESDC's appeal of a ruling regarding the Freedom of Information Law (FOIL).

The appeal in this case could be heard as early as March, with a decision coming six weeks later.

"Significant win"

"This is a significant win for property owners and community activists who oppose eminent domain," Siegel said. "The road map is that no longer can we allow just the government to do the Blight Study, we need to find the resources and find the experts who can work with us and put our own study in."

(I pointed out similarities and differences between the Columbia and AY cases, while the attorney in the AY case cited fundamental similarities. Siegel, who represented Develop Don't Destroy Brooklyn after its formation, agreed that, in both cases, blight was used as a pretext, given that the projects were announced well before blight was cited as a justification for eminent domain.)

Can decision in Columbia eminent domain case reopen AY case? DDDB is trying, but there are both similarities and contrasts (and also precedent)

Atlantic Yards Report

Based on the surprising 3-2 Appellate Division decision yesterday blocking the the Empire State Development Corporation's use of eminent domain for the Columbia University expansion, Develop Don't Destroy Brooklyn, organizer and funder of the Atlantic Yards eminent domain case, hopes that it can succeed in the rare step of reopening the latter.

It's not easy. First, the Court of Appeals has to agree to such a rare step.

Then the plaintiffs have to win. And that wouldn't be easy, either, because the decision in the Columbia case was in significant tension with the Court of Appeals' decision just last week in the Atlantic Yards eminent domain case.

And even if the Columbia decision is not overturned, it is possible--depending on which frame the court uses--to make a distinction between the Columbia case and the Atlantic Yards case. Then again, there are some fundamental similarities.

Fundamental flaw

The fundamental flaw in Justice James Catterson's opinion yesterday is that he completely ignored the Court of Appeals decision in the Atlantic Yards case, an opinion cited in Justice Peter Tom's Columbia dissent as compelling the Court of Appeals to defer to the ESDC's designation of blight.
...

Reopening the case

Brinckerhoff told me that, in most circumstances, a motion for reconsideration is futile. He said he was "cautiously hopeful" that the Court of Appeals, recognizing that the two rulings appear inconsistent, would accept the motion.

Then it could, at minimum, hold the case in abeyance until the appeal in the Columbia case is decided. That appeal could be heard in March, with a decision coming within six weeks after that.
...

"If I was involved in the bond sale, I would be looking at this decision and it would concern me, in a way that is very unexpected," Brinckerhoff said. The case is going to go to the Court of Appeals, he noted, "and judges ruled one way that seems rather inconsistent, in an opinion that doesn't cite [the AY case]."

December 2, 2009

In a decision announced today, the state Court of Appeals denied without comment a motion to appeal the challenge to the Atlantic Yards environmental review. It was another blow to Atlantic Yards opponents, who nonetheless cited new pending suits challenging the project.

The challenge to the environmental impact statement (EIS) was dismissed first at the trial court level and then by the Appellate Division, with Justice James Catterson writing a concurrence that had the tone of a dissent, slamming the Empire State Development Corporation (ESDC) "for being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized'."

While Catterson said his hands were tied, the petitioners hoped to leverage his dismay at the limits of the law to get the state's highest court to look at the "ESDC’s obligations under SEQRA [State Environmental Quality Review Act], the standard of review of a blight determination and legal ability of ESDC to lease a civic project to a for-profit entity under the UDCA [Urban Development Corporation Act]."
...
In choosing not to accept the case, the Court of Appeals chose not to engage with claims regarding consultant AKRF's misrepresentations of crime data and the failure to analyze real estate rents and values, as was requested in the original contract with AKRF.

NoLandGrab: The court's denial effectively means that the State of NY can take people's homes and businesses simply based upon a "blight study," which need only identify blight conditions  regardless of whether they are actually in a project's footprint, as in the case of the "crime study"  and which may disregard any inconvenient facts.

New York has been described as one of the worst abusers of eminent domain. After yesterday's denial by the courts, any doubts to that statement have surely been laid to rest.

A roundup story in the New York Times on arena bonds and more, headlined online New Nets Arena Wins Another Court Challenge, adds some important context--the bond ratings issued yesterday are no different from those assigned to bonds for the Yankees and Mets stadiums this year and in 2006. And rating agency Moody's says it's not worried about lawsuits.

But the article also contains some major errors.

The Times reports:

The financial underpinnings of the project, the cornerstone of the 22-acre Atlantic Yards development, also emerged on Tuesday when two rating agencies assigned an investment grade rating for $646 million in bonds for the project. In addition, the developer and his partners will use a $131 million subsidy from the Bloomberg administration and invest $293.4 million of their own to build the 18,282-seat arena at the intersection of Atlantic and Flatbush Avenues.

The investment grade rating was assigned only to the $500 million in PILOT bonds, not the riskier $146 million in subordinated bonds.

And that $131 million subsidy, stated in the Moody's report, doesn't make sense. If Moody's is counting city funding for land and infrastructure, it should also count at least some portion of the state's $100 million for infrastructure.

The Times reports:

At the same time, the Court of Appeals declined to hear an appeal from some property owners who said the state’s decision to condemn their land would benefit a private developer, rather than the general public, as required by the New York Constitution. Last week, the Court of Appeals ruled six to one that the state could exercise eminent domain in claiming businesses, public property and private homes for economic development projects like Atlantic Yards.

Actually, those two sentences describe the same eminent domain case. The appeal denied Tuesday challenged the environmental impact statement (EIS) and the petitioners were community groups, not property owners.

November 27, 2009

A Net gain for Brooklyn: High court did right by the city in Atlantic Yards lawsuit

NY Daily News, Editorial

Here's a surprise  a Daily News editorial full of untruths and half-truths in the wake of a pro-Atlantic Yards court decision.

The state's highest court has given a crucial go-ahead to plans to build a pro basketball arena and a major housing development at one of Brooklyn's great crossroads. Good for the judges. Good for New York.

There is much to like in the Court of Appeals decision regarding the Atlantic Yards project, starting with new hopes that the Nets will have a home in the city for the 2011 season and that thousands of apartments will rise on land that has been fallow for more than four decades.

By a 6-to-1 vote, the court dealt a small band of opponents a 26th straight defeat in their legal war of attrition against a project that grew only more critical as a jobs producer with the economic downturn. Hats off to developer Bruce Ratner for persevering through six years worth of regulatory approvals and lawsuits.

"Small band of opponents?" Hardly. Opposition to the Atlantic Yards project runs wide and deep. Small band of plaintiffs would be more accurate, since most of the hundreds of footprint occupants had been scared off long ago by the threat of eminent domain, bought off with taxpayer-subsidized payments that were actually below market value when the state zoning override is factored in.

It is to New York's shame that moving even the worthiest projects off the drawing boards is so difficult in a town that prides itself on getting big things done. All you need are some chanting pickets and a stack of summonses.

A worthy project wouldn't have drawn protests or lawsuits. What's worthy about building a heavily subsidized and unneeded arena while sucking scarce housing funding away from more cost-effective projects, and diverting hundreds and hundreds of millions of dollars in city and state funds from more important uses?

On the upside, the court rendered expeditious judgment, positioning Ratner to meet a year-end deadline for financing the start of construction and - even more important - established a wise standard for the use of eminent domain in New York State.

"Wise?" ROTFLOAO.

Lawyers for a handful of property owners - among the few who have not sold to Ratner at handsome prices - had asked the court for nothing less than a radical reinterpretation of the state Constitution. Many feared the panel would take an aggressively activist approach in keeping with a recent tendency to flex its judicial muscle.

Actually, the property owners were asking the court to rein in the radical expansion, over several decades, in the interpretation of what's fair game for eminent domain, from "public use" to "public benefit" to whatever the hell developers and politicians want.

Didn't happen. The panel declined to repudiate the U.S. Supreme Court's controversial Kelo decision, upholding the taking of a Connecticut home to make way for a now-abandoned commercial development.

Instead, the majority threaded a fine needle. It affirmed that New York may take property by eminent domain only for public use - except when an area has been deemed to be blighted. The court also established that it would not second-guess a blight finding that was reasonable.

"A fine needle" through which Bruce Ratner could drive a truck. Blight is apparently whatever the Empire State Development Corporation wants it to be. The court's decision makes just about any property in New York State vulnerable to condemnation.

The Atlantic Yards zone, at the intersection of Atlantic and Flatbush Aves., fit the blight definition well beyond reason.

With the small exception of a slice occupied by the complaining property owners, the tract has been a designated urban renewal area since 1968 and has stood vacant for all that time. Much of it is occupied by a below-grade cut for the Long Island Rail Road.

Bullshit. Only the railyard portion of the site, which constitutes little more than a third of the footprint, was part of the Atlantic Terminal Urban Renewal Area. While it may not be attractive, it's a working railyard, crucial to the metropolitan area's public transit system. And if it is shoddy looking, it's only because the state itself failed to maintain it properly. The "slice" occupied by living, breathing, productive taxpaying citizens is actually the majority of the site. And if by "vacant" the Daily News means occupied by a critical piece of public infrastructure and homes and businesses undergoing organic redevelopment, then they're absolutely right. If that's not what they mean, they're lying.

Now, if New York is lucky, Ratner will get to work on the arena, perhaps to be home court for Lebron James (we can dream), followed by 6,000 residential units - a third of them affordable - and 8 acres of open space. The public interest has been served.

It'll take a lot more than luck for any of that to happen. And the fact is, the public interest has been screwed.

November 26, 2009

Did Atlantic Yards Ruling Pass the Buck on 'Blight'?

Runnin' Scared
by Elizabeth Dwoskin

Tuesday's Atlantic Yards decision, in which New York's highest court upheld the right of the state to seize private property on behalf of a mega-developer, will doubtlessly impact the lives of thousands of Brooklyn residents and be discussed for years to come.

But the court backed off from a central question: Whether the site in downtown Brooklyn is truly "blighted."

In many ways, the entire case boils down to that loosely-defined word.
...

In order to make the case that the project would have a legitimate public use -- a necessary criterion for granting eminent domain -- Ratner and ESDC had to convince the court that the area was blighted. (The local residents who brought the lawsuit argued that, while much of the area is underutilized, their section of it is actually a very pleasant place to live.)

Blight studies have been disputed in other New York eminent domain cases -- like the lawsuit brought over Columbia University's contentious Manhattanville expansion project -- on the grounds that they have been financed by developers with a stake in their results.

Since the Atlantic Yards case hinged on the blight question, one would expect the Court of Appeals to have debated the questions of whether the area was actually in decay. But the majority decision, at least, brushed it off.
...

The lone dissenter in the case, Judge Smith, took on the blight issue directly, and claimed his colleagues were sidestepping the issue.

November 25, 2009

New York Court of Appeals Upholds Atlantic Yards Condemnations

The Volokh Conspiracy
by Ilya Somin

This outcome is not surprising. As I explained in this post, where I predicted the result, New York courts are among the most hostile to property rights of any in the country. New York is also one of only seven states that hasn’t enacted eminent domain reform of any kind since the federal Supreme Court’s controversial 2005 decision upholding “economic development” condemnations in Kelo v. City of New London.

Significantly the Court concluded that the property in question could be condemned because it is “blighted” and blight alleviation is a “public use” recognized by the New York Constitution, thanks to a constitutional amendment allowing the condemnation of slum areas. This despite the fact that it is very far from being a slum of any kind, and much of it is actually middle or lower middle class housing. Indeed, the opinion itself notes (pg. 14) that the Atlantic Yards area “do[e]s not begin to approach in severity the dire circumstances of urban slum dwelling” that led to the enactment of the blight amendment. To get around this problem, the Court held that “blight” alleviation is not limited to “‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose” (pp. 15–16, quoting a 1975 decision).

Obviously, virtually any area occasionally suffers from “economic underdevelopment” or “stagnation” and therefore could potentially be condemned under this rationale. Moreover, even under this expansive definition of blight, the decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution. I highly doubt that New York state constitutional amendment allowing condemnation of “substandard and insanitary areas” (Article XVIII, Section 1 here) would have passed had it been understood to mean that virtually any area could be declared blighted and condemned. As with most other blight condemnation laws, the amendment was sold to the public as a tool for eliminating “slums” (a point the majority concedes).

Allowing government agencies to declare virtually any area “blighted” and then condemn it at will is an abdication of judicial responsibility to protect constitutional property rights.

Appeals Court Affirms Eminent Domain for Proposed Brooklyn Stadium

Democracy Now!

And in New York, state officials and developers behind a massive stadium project have won a key legal victory to seize private property from Brooklyn residents. On Tuesday, the court of appeals said the state can use eminent domain to seize land planned for the $4.9 billion dollar Atlantic Yards project. Opponents of eminent domain have argued its unconstitutional and lawmakers have faced calls to curb its use. The group Develop Don’t Destroy Brooklyn says it plans to continue its campaign against the proposed stadium.

November 24, 2009

Court rules against Goldstein et al.

Battle of Brooklyn via Kickstarter

It was a depressing shoot this morning. For the last several days I have been to Dan and Shabnam's early in order to shoot as they waited for the verdict on their community's eminent domain case. The NY State Court of Appeals posts decisions at between 8:30 and 9:30. Dan nervously hit refresh on his mouse for minutes at a time waiting for the decision to get posted. At about 3 minutes after 9 today he yelled out, "It's up!" Moments later he flatly stated, "We lost."

There were no tears or hair pulling- there was work to do- press to talk to and a press conference to hold.

He had a press release ready to go win or lose- and lose went right out.

We didn't start this project with a particular beef against eminent domain. We heard about the project and we were curious and started shooting to find out what was going on. What we found out disturbed us. That sense of disturbance has only grown over the course of our shooting.

On the bright side of things- we have spent 6 years shooting and editing to make sure that this story doesn't go unnoticed. We have an incredible film that will shine a bright light on the situation. We also have an incredible community of friends and supporters who have come together to help us get this film made. We have now reached the 50% mark in our funding goal and we have a week to raise the rest.

If the over 200 people that have helped us out can take a moment to tell a few other people about our project we will reach our goal with plenty of time to spare.

While we were hoping that our main characters would prevail in their lawsuit, not only for their sake- but to bring a quick end to our shooting- we also know that this legal outcome makes the film that much more necessary.

EMINENT DOMAINIA: The Big Apple Bites! P.M. Edition

Okay, so it's not as bad as a Dickens' Bleak House, the state's highest court admits, but in a majority opinion issued this morning, six of the judges agreed with the state that the neighborhood is blighted, and that Bruce Ratner should be allowed to take whatever land he needs to build the shinier, happier Atlantic Yards development.

Blight's changed, says the court. The petitioners, led by Daniel Goldstein of Develop Don't Destroy Brooklyn, "are doubtless correct that the conditions...do not begin to approach in severity the dire circumstances of urban slum dwelling described by the Muller court in 1936," wrote Chief Judge Jonathan Lippman, but he added, it doesn't have to look like the Great Depression to be blight. Nor does it have to look like any of that pre-Depression blight you might have read about. "Of course, none of the buildings are as noisome or dilapidated as those described in Dickens' novels or Thomas Burke's Limehouse stories of the London slums of other days," the court wrote back in the 1950s--in a quote cited by the court.
...

Obviously, some complex constitutional and legal issues were the main concern here, but we wonder whether the court took into consideration that maybe nobody wants to watch the dismal 0–13 Nets play basketball, anyway.

In its 48-page opinion, the court held that the suit by Daniel Goldstein of Develop Don’t Destroy Brooklyn and other property owners should be dismissed because it was filed too late — more than 30 days after the Empire State Development Corporation’s “determination and findings” in favor of the developer, Forest City Ratner.

The court took a jaundiced view of the barrage of lawsuits — at least eight since January 2006 — filed against the project: “What has happened in this case is precisely the result that the Legislature sought to prevent when it enacted the Eminent Domain Procedure Law,” Chief Judge Jonathan Lippman wrote — “the sidelining of a public project on account of prolonged litigation.”

Not only does this disastrous 6-1 decision put every property holder in the state at risk, it represents the court’s utter failure to serve as an independent tribunal of justice. Rather than judging the facts and, if necessary, voiding an illegal state action, the court punted, arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”
...

It's a sad day for the New York judiciary when six of the state's seven highest judges can't be bothered to do their basic constitutional duty.

The ruling means that Ratner may proceed with the sale of tax-exempt bonds to finance the sports arena that is scheduled to be the first stage of the gigantic development. The construction of both affordable and market-rate housing is supposed to begin with months of the arena, but as The New York Times points out this morning, "with so many new apartments sitting vacant, analysts say it could be many years before demand will justify building so many units in one neighborhood."

The Nets may have lost all 13 games they've played so far this season, but they picked up the only kind of court victory they actually care about on Tuesday. The New York State Court of Appeals ruled that the the state can use eminent domain to force tenants out of buildings slated to be used as part of the Atlantic Yards project designed to build the team an arena in downtown Brooklyn.
...

But those individual battles won't necessarily decide the entire war. The Nets still need to issue tax-exempt bonds before the end of the year to actually get started with construction, and the project's adversaries are still using a four-corner offense, to use basketball parlance, to delay things past that point.

Not a great shocker in the result, considering NY's state court precedent on eminent domain, and the fact that New York is one of the only states without any sort of post-Kelo law (purporting) to restrict economic development takings (again, see Ilya Somin's critique of post-Kelo reform attempts). However, this is another high-profile eminent domain case in the books to annoy takings opponents. It may have an effect on public opinion and the feasibility of future large-scale redevelopment projects that require delegation of the government's eminent domain power for private land assembly. Will it add to the impact of the Pfizer pullout in establishing, as the NY Times suggested, a turning point for eminent domain? New London, like Poletown, was a project that may have been doomed from the start. Atlantic Yards is a similar pie-in-the-sky comprehensive redevelopment project, but perhaps it has a better economic foundation, with participation of a major-league sports franchise and its location in the hip borough of Brooklyn. If it fails, it will surely add to the arguments against economic development takings. If it succeeds, it will probably just egg developers on.

If it does proceed, for the sake of Brooklyn I hope that Atlantic Yards will turn out better than New London.

[T]he decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution. I highly doubt that New York state constitutional amendment allowing condemnation of “substandard and insanitary areas” (Article XVIII, Section 1 here) would have passed had it been understood to mean that virtually any area could be declared blighted and condemned.
...
The case is also significant because it is the first major state supreme court defeat for property rights on a public use issue since Kelo. Over the last 10 years, the tide had been going the other way, with more and more state high courts applying restrictive definitions of “public use” and forbidding economic development takings of the kind upheld in Kelo, including important decisions in Ohio, Oklahoma, and Michigan, among others.

In a 6-1 decision, the New York Court of Appeals has turned down critics’ arguments that the state’s Empire State Development Corp. violated New York’s constitution in pursuing eminent domain to acquire land for Atlantic Yards, including Barclays Center. The ruling means the ESDC will now be free to begin condemnation proceedings against landowners. There is no appeal to the US Supreme Court.

"They have won round one, and we still have round two to go," Brinckerhoff said. "I think everybody believes that they need to do a number of things by the end of the year, and where exactly this fits into that process I'm not sure. But the fact that they haven't yet taken the properties can't be helping them."

However, sports are just an avenue of entertainment and enjoyment. A mere means of theatrics, thrill, and emotion that remove us from the on-going struggle of everyday life. Sports, however, are in no way an essential part of life.

Even as an admitted fanatic of the New York Yankees and New York Knicks, I understand that as rich in history as the two franchises and their two home facilities in Yankee Stadium and Madison Square Garden are (or have been), they are not as important as the important things in life. They are not as important as life.

With that understanding, is why I cannot understand the constant movement for the Atlantic Yards project here in Brooklyn, NY.
...

With all of the perks and benfits now reduced to just a basketball and event arena, is this project even worth it?

Courts Again Side with Atlantic Yards: Jobs and Affordable Housing to Come to Brooklyn

BROOKLYN, NY—Bruce Ratner, CEO and Chairman of Forest City Ratner Companies, issued the following statement today regarding the NYS Court of Appeals ruling in favor of the Atlantic Yards project in Brooklyn.

The Court's ruling upholds the State’s right to use eminent domain given the public benefits associated with the Atlantic Yards Development in Brooklyn.

“Once again the courts have made it clear that this project represents a significant public benefit for the people of Brooklyn and the entire City,” Mr. Ratner said. “Our commitment to the entire project is as strong today as when we started six years ago. Today, however, this project is even more important given the need for jobs and economic development.”

Mr. Ratner said construction activity on the yards will continue, with the intent that the Nets will play ball in the Barclays Center in the 2011-2012 NBA Season.

In addition to Barclays, which has the exclusive naming rights, eight companies have signed on as founding partners for the arena.

The courts have ruled consistently in favor of the development. Mr. Ratner explained as well that the arena and larger development are expected to create 16,924 union construction jobs and over 8,000 permanent jobs. The tax revenues that will be generated for the City and State during the construction period are expected to exceed $240 million and after construction reach approximately $70 million a year.

NoLandGrab: 8,000 permanent jobs?! That number is only inflated about three times over from the latest plan, and without the proposed office tower  Ratner himself asked a Crain's reporter a few weeks ago "can you tell me when we are going to need a new office tower?"  the true number is likely fewer than 1,000.

EMINENT DOMAINIA: The Big Apple Bites!

Here's a round-up of stories from the mainstream media and blogosphere pertaining to this morning's New York State Court of Appeals ruling on the permissibility of eminent domain for Bruce Ratner's Atlantic Yards project.

The last major obstacle to a groundbreaking for the $4.9 billion Atlantic Yards development in Brooklyn fell Tuesday when New York’s highest court, the Court of Appeals, dismissed a challenge to the state’s use of eminent domain on behalf of the developer, Bruce C. Ratner.

Mr. Ratner, whose 22-acre development has been delayed for three years by a flurry of lawsuits, the collapse of the credit and real estate markets and a glut of luxury housing, plans to begin selling tax-free bonds next month to finance the development’s cornerstone project: an 18,000-seat basketball arena for the New Jersey Nets at the intersection of Flatbush and Atlantic Avenues near downtown.
...

If construction begins in the coming weeks as expected, Atlantic Yards will stand out in a city where 530 different construction projects are stalled, sitting lifeless and without adequate financing in virtually every neighborhood.

More than three years after a legal battle over property takings in Brooklyn began, it's now come to a close.
...

Now the state, at the request of the project's developer, Forest City Ratner, is likely to move forward on acquiring the property of the holdout landowners and tenants, a relatively small handful of individuals who have been waging this legal fight since 2006. The takings, and the project as a whole, depend on Forest City hit Dec. 31 deadline to get financing for the arena.
...

New York is one of just a handful of states that did not add restrictions to the use of eminent domain after the Kelo v. New London case of 2005. That case has made the news once again recently, as Pfizer, which built a facility in New London, Ct. that helped spur the city's use of eminent domain, is pulling out of the area. A large development site near the drug giant's facility still sits vacant.

In a 6-to-1 decision handed down this morning, the Court of Appeals ruled against property owners and businesses in the development's footprint in Brooklyn. A majority of the judges said that the area was sufficiently blighted to justify the state's use of eminent domain.
...

One judge, Robert Smith, dissented, arguing that blight was never a "bona fide purpose" for the development but instead a justification invented after the project was conceived.

The Court of Appeals ruling, written by Chief Judge Jonathan Lippman and joined by five colleagues, affirmed that the state’s use of its condemnation power to clear land on behalf of a private developer, is “in conformity with certain provisions of our State Constitution.

Almost every Brooklynite you talk to has a fairly strong opinion about the Atlantic Yards project. Many shudder to think about the traffic and congestion that might beset downtown Brooklyn after all is up and running — and the Nets are over there, possibly losing games by the dozens (not to mention the displacement of many local residents). Others like the thought of the borough reclaiming is place as major-league in its own right, separate and apart from its flashier brother just to the west. Reaching full consensus on the Atlantic Yards project? As one might say in the rest of the country: Please forget all about that.

In any event, the New York state Court of Appeals handed down its long-awaited ruling on the project Tuesday morning, holding it lawful a state economic development agency to seize private land to build an arena.

In a statement, Ratner said, "The courts have made it clear that this project represents a significant public benefit," Ratner said. "Our commitment to the entire project is as strong today as when we started six years ago."

Construction will continue, said Ratner, who said he expects the Nets will begin playing at the new arena for the 2011-2012 season.

Ratner must start building the arena before the end of 2009 or he will lose out on $700 million of low-cost tax-free debt. Ratner still faces another lawsuit over whether the state mass transit agency sold the site for too low a price.

“It may be that the bar has now been set too low — that what will now pass as ‘blight’ … should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses,” Lippman wrote.

But he added that limitations on eminent domain would be “the province of the legislature” and not the courts, except in extreme circumstances.

But the politicians and community groups that have been fighting the development have vowed to continue their quest to kill the project. The court decision cannot be appealed, but there are at least four other suits pending against the project, which is slated to include sixteen towers of mostly residential units although a hotel and office building are also possible. However, legal experts said the eminent domain suit posed the greatest threat to the project.

Four of the seven judges, in a majority ruling by Chief Judge Jonathan Lippman, said the state had sufficiently shown that the project area containing the private parcels was "blighted" and subject to condemnation under the state Constitution, although Judge Lippman conceded that definitions of urban blight that were established during the Great Depression may have to be updated.
...

With the start of the season Mark and I have been really focused on the games, so focused in fact, that there has been little attention paid to some of the off-the-court stuff happening with the Nets. Today, however, something happened that can’t really be ignored. In a 6-1 decision, the New York Court of Appeals has turned down critics’ arguments that the state’s Empire State Development Corp. violated New York’s constitution in pursuing eminent domain to acquire land for Atlantic Yards, including Barclays Center.

In a statement, Tenacious B said, "Once again the courts have made it clear that this project represents a significant public benefit for the people of Brooklyn and the entire City. Our commitment to the entire project is as strong today as when we started six years ago. Today, however, this project is even more important given the need for jobs and economic development." He also reinforced his claim that the NBA's Nets will lose horribly play in the new Barclays Center in the 2011-2012 season.

Very bad news out of Albany this morning: New York’s Court of Appeals has just upheld the state’s controversial use of eminent domain on behalf of real estate tycoon Bruce Ratner and his Atlantic Yards project in Brooklyn.

Atlantic Yards opponents may have lost another battle in their war with Forest City Ratner as the state's highest court ruled against them today in a case challenging the use of eminent domain for the massive arena-and-condos project in Brooklyn. But with barely a month left to issue tax-exempt bonds on which the SHoP- and Ellerbe Becket-designed arena rely, the opponents knock-down, dragged-out legal strategy may have won the war.

A special bond authority created by the Empire State Development Corporation is set to begin proceedings to issue those bonds at a 10:00 a.m. meeting today, and now will have some breathing room, given the court's decision. As has long been the case with the opponent's challenges to eminent domain, the majority, in their decision took many issues with the process but ultimately found that it was not their place to overrule the legislature.

"We are disappointed, but undeterred. We lost this round, but the legal fight is not over. My clients will continue to resist Ratner's efforts to steal their homes and businesses in the New York courts," said lead attorney Matthew Brinckerhoff of Emery, Celli, Brinckerhoff & Abady. "Because the Court of Appeals made it clear that it considered itself 'bound' by the self-serving record created by the Empire State Development Corporation prior to its December 2006 public use finding, and thus refused to consider the events leading up to the ESDC's adoption of a modified general project plan two months ago, we now intend to commence a new lawsuit seeking to compel the ESDC to issue new or amended public use findings.

Court of Appeals upholds AY eminent domain 6-1

Atlantic Yards Report

In a decision (PDF) that gives the crucial--but perhaps not final--boost to the Atlantic Yards project, the state's highest court, the Court of Appeals, approved the use of eminent domain by a 6-1 margin, saying that it's not the role of the courts to intervene in agency decisions, given the wide latitude in state law to decide on blight.

The case, which involves nine petitioners (homeowners, commercial property owners, and residential and commercial renters) is known as* Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation* (or ESDC).

Project backers had long expressed confidence about the result, given the state court's general deference to agency decisionmaking, but the court's willingness to accept the case in the first place--the Appellate Division had unanimously upheld the Empire State Development Corporation (ESDC) in the first round--had left some room for ambiguity.

Moreover, two of the seven judges seemed skeptical of the ESDC during the oral argument October 14, though the judges spent the most time on procedural issues and the attorney for the nine petitioners faced similar skepticism. One of those judges, Robert Smith, filed a blistering dissent that stated:

[T]he majority is much too deferential to the self-serving determination by Empire State Development Corporation (ESDC) that petitioners live in a "blighted" area, and are accordingly subject to having their homes seized and turned over to a private developer.

...It is clear to me from the record that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development at issue in this case.
...

No bar to groundbreaking

Developer Forest City Ratner still must get arena bonds sold by the end of the month, and they may be hampered by the remaining cloud of litigation and the lowered market for sports facilities, but this was the largest roadblock, and there is no bar to a promised groundbreaking in the next month or so.

Develop Don't Destroy Brooklyn, which organized and funded the lawsuit (and whose spokesman, Daniel Goldstein, was the lead plaintiff), said it would file a new lawsuit because the court ruled only on the record from 2006, which promised much greater benefits than are now likely.
...

“Once again the courts have made it clear that this project represents a significant public benefit for the people of Brooklyn and the entire City,” Mr. [Bruce] Ratner said. “Our commitment to the entire project is as strong today as when we started six years ago. Today, however, this project is even more important given the need for jobs and economic development.”

Mr. Ratner said construction activity on the yards will continue, with the intent that the Nets will play ball in the Barclays Center in the 2011-2012 NBA Season.

The ESDC issued a statement:

“Today the State's highest court, like every other court that has considered the issue, upheld the use of eminent domain to facilitate development of the Atlantic Yards Project. Empire State Development is as committed as ever to seeing the completion of this Project. With this major hurdle overcome, we can now move forward with development which will accomplish its goals of eliminating blight, and bringing transportation improvements, an arena, open space, affordable housing and thousands of jobs to the people of Brooklyn and the State of New York.”

Brooklyn Borough President Marty Markowitz issued a statement:

"The ruling by the State Court of Appeals reinforces previous decisions supporting the numerous public benefits of the Atlantic Yards project—during these difficult economic times and into Brooklyn’s bright future—including the creation of affordable housing, solid union jobs and permanent employment opportunities for Brooklynites who need work. Today’s decision from our state’s highest court marks what amounts to the final step in the legal process to make it happen. Finally, we will bring a national professional sports team and a world-class facility back to our borough after 52 years! Brooklyn’s shovels are, and have been, ready. So, let’s pick them up and get to work!”

Assemblyman Hakeem Jeffries issued a statement:

"I am extremely disappointed with the decision of the Court. The power of eminent domain is extraordinary and should only be authorized in limited circumstances where, unlike in this case, there is a clear and robust public benefit. The use of eminent domain to benefit a private developer to build a basketball arena for a team owned by a foreign billionaire is an abuse of this extraordinary power, and I hope that Governor Paterson will choose not to exercise it."

Despite Ruling, Fight Against Ratner's Brooklyn Project Is Far From Over

BROOKLYN, NY — New York's high court ruled today against property owners and tenants who had challenged the state's use of eminent domain to seize their homes and businesses for the enrichment of developer Bruce Ratner and his Atlantic Yards project in Prospect Heights, Brooklyn.

In the 6-1 decision the Court of Appeals ruled that the state agency's determination to take the plaintiffs property had a rational basis under state law.

Today, November 24, at 12:30pm plaintiffs, Develop Don't Destroy Brooklyn, members of the community, attorneys and elected officials will hold a press conference about the ruling and the fight against Atlantic Yards. The press conference will be held in front of Freddy's Bar in Brooklyn at 485 Dean Street at the corner of 6th Avenue. (Directions, 2/3 train to Bergen St, or B,D,Q,N,4,5 to Pacific/Atlantic.)

"The fight against the Atlantic Yards project is far from over. The community has four outstanding lawsuits against the project and, meanwhile, the arena bond financing clock ticks louder and louder for Ratner. While this is a terrible day for taxpaying homeowners in New York, this is not the end of our fight to keep the government from stealing our homes and businesses,” said Develop Don't Destroy spokesman and lead plaintiff Daniel Goldstein. "Governor Paterson and Mayor Bloomberg now need to decide if they want their legacy to be the next New London—a dust bowl in the heart of Brooklyn caused by the abuse of eminent domain, because that will be the outcome if they allow the property seizures and final clearance for Ratner's unfeasible project."

"We are disappointed, but undeterred. We lost this round, but the legal fight is not over. My clients will continue to resist Ratner's efforts to steal their homes and businesses in the New York courts," said lead attorney Matthew Brinckerhoff of Emery, Celli, Brinckerhoff & Abady. "Because the Court of Appeals made it clear that it considered itself 'bound' by the self-serving record created by the Empire State Development Corporation prior to its December 2006 public use finding, and thus refused to consider the events leading up to the ESDC's adoption of a modified general project plan two months ago, we now intend to commence a new lawsuit seeking to compel the ESDC to issue new or amended public use findings. It would be perverse and unfair if my clients homes and businesses were confiscated based on circumstances that no longer exist. At the same time, we will also vigorously defend the cases that the State will now file seeking to seize my clients' properties, which is the second barrier that Ratner and the ESDC must now attempt to overcome."

"While we are deeply disappointed in the Court's decision, our fight against the government's abuses on Ratner's behalf continues, and we expect to defeat Atlantic Yards through political and legal means", said Develop Don't Destroy legal director Candace Carponter. "It now falls to Governor Paterson to guarantee, through a binding legal contract, which the State would be required to enforce, that all the developer's promises about the project—including all of the ‘affordable' housing and the ten year construction timeline—are fulfilled. If the Governor is unable to do that, he is duty-bound to abandon this ill-fated project, and start over so the rail yards can be developed properly and realistically."

In 2005, in the wake of the Supreme Court's widely despised Kelo decision that expanded the reach of eminent domain, then-Senator David Paterson called for a state-wide blanket moratorium on the use of eminent domain.

"Governor Paterson needs to ask himself what happened to Senator Paterson's position on eminent domain. And then he needs to act on his principles," Carponter concluded.

New York State Court of Appeals rules against Atlantic Yards footprint property owners

The New York State Court of Appeals handed up a ruling this morning In the Matter of Daniel Goldstein, et al. v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation.

The court ruled 6-1 in favor of the State, permitting the use of eminent domain for the Atlantic Yards project under New York State law.

Click here to download a PDF of the 60-page decision. Much more to follow.

With decision in eminent domain case possible on same day arena bonds are authorized, it could be an interesting Tuesday

Atlantic Yards Report

By about 9:20 am today, we should know whether the Court of Appeals has ruled in the Atlantic Yards eminent domain case.

If there's no ruling, then the 10 am meeting of the Brooklyn Arena Local Development Corporation to authorize arena bonds should be relatively uneventful--except, of course, for the details to be revealed about the mix between tax-exempt and taxable bonds, as well as whether they're to be used for infrastructure.
...
If the ruling is in favor of the state, then likely there will be a collective sigh of relief among those running the hearing, even if other lawsuits and the challenge of selling bonds in the current market represent potential snags.

And if the ruling turns out to be in favor of the plaintiffs, then expect a rather surreal meeting. Atlantic Yards would have been dealt a near-fatal blow.

November 23, 2009

Fate of Atlantic Yards project remains unclear

NorthJersey.com
by John Brennan

The fate of the $5 billion Atlantic Yards project in Brooklyn will not be known until tomorrow at the earliest.

The New York Court of Appeals' list of rulings today did not include a decision on the validity of the state's use of eminent domain to facilitate the construction of Atlantic Yards, which would include a new arena for the New Jersey Nets as well as thousands of condominiums near downtown Brooklyn.

The court may release its decision tomorrow; if not, the next scheduled date for rulings is Tuesday, Dec. 1.

November 21, 2009

Tension builds over the anticipated eminent domain decision by the New York Court of Appeals even as an additional lawsuit was announced this past Thursday.

It is very possible that the New York State Court of Appeals will issue its decision on the constitutionality of eminent domain at Atlantic Yards Monday or Tuesday.

...

There has been much speculation that the ruling would be made before Thanksgiving, which is Thursday, but the Court of Appeals has not said anything to that effect.

If the appeal filed by landowners is successful, the plan for Atlantic Yards will either have to be entirely abandoned or dramatically redesigned, which would likely take years.

If the appeal fails, then the state will go forward with taking title of the land through a court proceeding in Brooklyn Supreme Court, which Atlantic Yards opponents will also challenge. If the state is ultimately successful, it will then lease the land to Ratner for a nominal fee, such as $1.

Ratner, however, will still have to fight the myriad of lawsuits that have been filed against his planned 22-acre project, which is expected to bring the New Jersey Nets to Brooklyn.

On Thursday, another lawsuit was filed, making it the third in less than 40 days.

...

This latest lawsuit, which challenges the project’s approval process, comes at a time when both sides of the legal controversy are eagerly awaiting the state’s high court to rule on the most important issue of all the cases — whether the state acted unconstitutionally in exercising eminent domain over property owners whose land sits in the proposed footprint of the Atlantic Yards basketball arena.

Nets arena lawsuits are the new black

Field of Schemes

The Village Voice headline says it all: Yet Another Atlantic Yards Lawsuit! This one, filed by a group of local elected officials and community groups, charges that the Brooklyn Nets arena deal wasn't adequately evaluated by the state — which is different, mind you, from the lawsuit a similar group filed last month charging that the sale of state-owned rail yards wasn't adequately evaluated. Add in the pending eminent domain appeal and the other recent lawsuit against the state, and the number of suits in play against the project is now up to four. This can't be making the bond insurers happy.

Atlantic Yards opponents fired their latest salvo against the project Thursday, charging in a new lawsuit that the state illegally handed over the reins of the project to developer Bruce Ratner.

They're asking a judge to overturn the Empire State Development Corporation's September approval of a modified plan for the new Nets arena and 16 towers.

"The agency has handed over to Forest City Ratner control of 22 acres of Brooklyn, no strings attached," said Assemblyman Jim Brennan (D-Park Slope), one of the plaintiffs.

...

Plaintiffs said the plan gives Ratner wide leeway on the timing of the project (which could take anywhere from 10 to 25 years), the design of the buildings and how much commercial space to include.

"Nowhere in the [law] is there authority to delegate to private parties decisions regarding the timing or makeup of a project. That, however, is what the petitioners submit, ESDC has done in this case - and done illegally," the suit charged.

Opponents also said changes to the project meant a new environmental study was required, since delays could leave part of the site as "a kind of urban wasteland" for decades.

Attorney for the plaintiffs Albert Butzel said that as Atlantic Yards floundered amid financing trouble and mounting legal challenges, state officials bent over backwards to help Ratner get the project off the ground. "His wish is their command. It ought to be the other way around," he said.

...

"We're on the verge of making Atlantic Yards a reality, a reality that means thousands of jobs," said Forest City Ratner vice president Bruce Bender. "It should not surprise anyone that opponents who pledged to sue early and often are still suing. It is what they do."

But Butzel noted it's the first lawsuit from Brooklyn Speaks, a coalition that in the past has pressed for changes to Atlantic Yards but stopped short of legal action to halt it altogether. "They finally ran out of patience," he said. "It's getting awfully late to just ask."

Atlantic Yards Faces Another Lawsuit

A coalition of Brooklyn officials and community groups has filed the latest in a series of lawsuits against the Atlantic Yards project. This one focusing on revisions the state approved in September.

They say the changes made the project worse by expanding the above-ground parking area and lengthening the amount of time the developer would be given to build the office and apartment buildings. The state's economic development agency says it will defend its actions, and expects to prevail.

Until now, the coalition, called Brooklyn Speaks, had been taking a "mend it don't end it" approach to Atlantic Yards, trying to avoid litigation.

In contrast, Develop Don't Destroy Brooklyn has filed a series of court actions dating back years. Three of their lawsuits are pending or under review.

The state's highest court is expected to decide a fourth case shortly, filed by property owners and tenants against the use of eminent domain, in the next two weeks.

Assuming that case is resolved in its favor, the developer, Forest City Ratner, plans to sell bonds to finance the basketball arena, the first part of the project, by the end of the year.

November 20, 2009

BrooklynSpeaks attorney Butzel: "ESDC has just handed over the entire keys to the kingdom to Ratner"

Atlantic Yards Report

Norman Oder has more on yesterday's press conference by the BrooklynSpeaks coalition, announcing their lawsuit against Bruce Ratner's Atlantic Yards project. Click through for more coverage and analysis, including video footage of the event.

Though most news reports--and even Forest City Ratner, which erroneously claimed that "opponents who pledged to sue early and often are still suing"--treated yesterday's lawsuit filed by BrooklynSpeaks and allies as more of the same, the biggest news, as I pointed out, was the simple fact of the lawsuit: the radicalization of groups that once tried to negotiate with the state and the developer, and found it all came to naught.

So the rhetoric of those at yesterday's press conference at City Hall sounded remarkably DDDBesque. "We are now faced with... a ceding of ESDC's powers to Forest City Ratner to do whatever it wants over the next 20some-odd years," declared Jo Anne Simon of the Boerum Hill Association, speaking above. "We know that will not be in the best interests of the community."

Legal argument

The legal papers filed make scornful reference to developer Bruce Ratner's claims that Atlantic Yards "isn't a public project" and warn of a "failure" scenario in which the Atlantic Yards site, left mostly unbuilt, recalls the scene in New London, CT, where, despite a U.S. Supreme Court decision upholding the use of eminent domain, nothing was built and key property owner Pfizer decided to leave.

"What we're trying to do is give the communities a voice in how this site is ultimately developed," stated attorney Al Butzel (right) of the Urban Environmental Law Center, a nonprofit group set up to help community groups. Butzel led the legal fight in the 1970s-early 1980s against Westway.

"Litigation is not the best of all instruments; politics is the best of all instruments," he said. "But when you have an administration like you have in New York City with its complete ties to the development community, and a state government which really isn't paying attention and an ESDC which has largely lost its focus, litigation is one of the ways you gain attention and hopefully stop this project."

Dog pile on Ratner — another Yards suit is filed

The Brooklyn Paper
By Stephen Brown

Brooklyn Speaks, a coalition of eight community groups that has taken a backseat to other opposition efforts, filed the suit in Manhattan Supreme Court on the grounds that the June modifications allow Ratner to take far longer to build the $4-billion, 16 tower arena, residential and office complex — and a longer build-out time only worsens the “blight” in and around the intersection of Flatbush and Atlantic avenues that the project is supposed to remedy.

“The Empire State Development Corporation has ignored its statutory duty to act in the public interest,” said Assemblyman Jim Brennan (D-Park Slope), a member of the coalition. “By approving a modified Atlantic Yards project without so much as a new site plan, let alone a committed completion date, the agency has handed over to Forest City Ratner control of 22 acres of Brooklyn, no strings attached.
...
An ESDC spokeswoman did not seem too intimidated by the growing chorus of opposition to the project. “This new lawsuit is similar to the lawsuit filed one month ago,” she said. “Repeating this claim, however, does not make it any more valid.

November 19, 2009

2009 BrooklynSpeaks Atlantic Yards Lawsuit Press Conference

Tracy Collins has posted a handful of pictures from today's BrooklynSpeaks press conference. That's attorney Albert K. Butzel, who also argued and won the case that stopped the Westway project. Click here to view a slideshow.

BrooklynSpeaks Lawsuit: News Round-up

The suit in many ways echoes the previous lawsuit filed by Develop Don't Destroy Brooklyn (DDDB) and allies aiming to annul the Empire State Development Corporation's (ESDC) approval of the Modified General Project Plan.

It charges that the ESDC should have conducted a Supplemental Environmental Impact Statement (SEIS), given the delay imposed by Forest City Ratner's renegotiated deal with the Metropolitan Transportation Authority.

Though the new suit adds some details and arguments, including the charge that ESDC illegally delegated to Forest City Ratner the discretion to determine the project timetable and the components included, the two cases likely will be consolidated.

ESDC response

The ESDC issued a statement:

Empire State Development Corporation will vigorously defend this action and we expect to prevail on the merits. It should be noted that this new lawsuit is similar to the lawsuit filed one month ago by Develop Don’t Destroy Brooklyn, in that the primary claim in both cases is that ESDC should have prepared a Supplemental Environmental Impact Statement. Repeating this claim, however, does not make it any more valid.

NoLandGrab: And claiming the nonsense below doesn't make it true, either.

ESDC carefully considered whether a Supplemental Environmental Impact Statement would be required. The conclusion of that analysis, which is set forth in a detailed Technical Memorandum, was that a Supplemental Environmental Impact Statement was not required. The additional claim asserted in the new lawsuit is devoid of merit. We do not expect that either lawsuit will delay the Project.

New rhetoric

But the rhetoric of the legal complaint, which charges that the ESDC has capitulated to a private developer, and the details in an accompanying affidavit suggest that the organization--once following a "mend-it-don't-end-it" strategy--has been pushed into firm opposition by the intransigence and lack of consideration from the ESDC and developer Forest City Ratner.

In other words, even though there's some longstanding tension between BrooklynSpeaks and DDDB, BrooklynSpeaks has come much closer to DDDB's stance.

As Forest City Ratner awaits a crucial court decision that could make or break its controversial Atlantic Yards development in Brooklyn, yet another lawsuit has been filed to try to block the project.
...

In a statement, Bruce Bender, an executive vice president at Forest City Ratner, said that the company is on the verge of making Atlantic Yards a reality which will include jobs, affordable housing and a sports and entertainment arena.

“It should not surprise anyone that opponents who pledged to sue early and often are still suing. It is what they do,” he said.

NLG: Note to Bruce Bender  these are not the same opponents. But yes, unlike your company, we opponents are true to our word.

The suit comes as the state Court of Appeals is soon expected to decide on separate litigation that says it would be unconstitutional for ESDC to seize private property for the project through eminent domain. Like his winless Nets, Ratner needs a victory here because he must break ground on the Prospect Heights arena by year’s end or risk losing critical tax-exempt financing.

The lawsuit was filed Thursday in Manhattan state Supreme Court. It seeks to block a Sept. 17 move by the Empire State Development Corp. to approve a delayed construction plan for the Atlantic Yards project.

It seems Bruce Ratner's Atlantic Yards boondoggle was getting another lawsuit just yesterday (it was in October, actually -- an appeal by local landholders whose property is being seized to make the big Brooklyn hole that was supposed to be a sports arena/shopping complex by now even bigger). Now state senator Velmanette Montgomery, assemblyman Jim Brennan, councilmember Letitia James, and a bunch of community groups will contend in court that the Atlantic Yards Modified General Project Plan wasn't properly reviewed by the Empire State Development Corporation, and that ESDC has in fact "illegally delegated to FCRC much of its governmental power to determine the future content and configuration of the project."

After pursuing a non-adversarial stance for the entire history of the Atlantic Yards saga, Brooklyn Speaks, the coalition of neighborhood and civic groups, is set to announce a lawsuit challenging the ESDC’s approval of the Atlantic Yards Modified General Project Plan.

BROOKLYNSPEAKS PRESS RELEASE: Brooklyn Community Organizations and Elected Officials File Lawsuit Against the Empire State Development Corporation and Forest City Ratner; Seek to Reverse ESDC’s Approval of Atlantic Yards’ Modified General Project Plan

Prominent civic and community development organizations and local elected officials who represent the communities surrounding the Atlantic Yards Project, gathered on the steps of City Hall on Thursday, November 19th @ 11am to announce the joint filing of a lawsuit that challenges the ESDC’s approval of the Atlantic Yards Modified General Project Plan. The suit was filed this morning at the NYS Supreme Court of Manhattan by attorney Albert K. Butzel of the Urban Environmental Law Center, who is representing the plaintiffs.

The suit contends that the plan was approved without sufficient study of the impacts of its extended construction schedule and completion risks. It also alleges that the ESDC has illegally delegated to FCRC much of its governmental power to determine the future content and configuration of the project.

Groups and elected officials filing suit include the Atlantic Avenue LDC, the Brooklyn Heights Association, the Boerum Hill Association, the Fifth Avenue Committee, the Park Slope Civic Council, Pratt Area Community Council, the Prospect Heights Neighborhood Development Council and State Senator Velmanette Montgomery, Assemblyman Jim Brennan and City Councilmember Letitia James.

“The ESDC has ignored its statutory duty to act in the public interest. By approving a modified Atlantic Yards Project without so much as a new site plan, let alone a committed completion date, the agency has handed over to Forest City Ratner control of 22 acres of Brooklyn, no strings attached. The ESDC must address the likelihood that Atlantic Yards will continue to expand the kind of urban blight the agency now pretends the Project will remove,” said Assemblyman Jim Brennan.

As sponsors of the BrooklynSpeaks initiative, the organizations have tried for three years to engage the ESDC regarding impacts of the Atlantic Yards Project on the surrounding communities. The group has advocated, among other things, for a thoughtful proposal for the governance of the Project, including a strong advisory role for local elected officials and community residents currently excluded from any meaningful participation.

“The ESDC has been singularly unable to follow through on its basic governmental obligations–and its commitments to the public—to provide transparency and oversight to the largest single-source development project in the City’s history. We have no alternative other than to bring suit in order to require a valid assessment of the long-term impacts of Atlantic Yards before further irreversible action is taken,” said Jo Anne Simon of the Boerum Hill Association.

"With each day, we learn more about how troubled and troubling this project really is. The overreaching of the developer has only been compounded by the failures of the state authority which is supposed to be in control, the ESDC. Its actions make clear that it has completely and utterly failed its obligations to the public in its efforts to do the developer’s business,” said State Senator Velmanette Montgomery.

“Atlantic Yards is a terrible project – out of place, outsized and out of bounds. It represents one more cynical partnership between government, which is supposed to serve the public interest but doesn’t, and the powerful New York City development community, which serves its own,” said attorney Albert Butzel. “This lawsuit challenges that incestuous arrangement and seeks to give the impacted communities an opportunity to participate in the planning for Atlantic Yards and help determine their own future.”

City Councilmember Letitia James, who has opposed the Atlantic Yards project since its inception, stated, “Democracy should not operate in secrecy. The proposed Atlantic Yards project continues to be led by the developer undermining our system of government and in defiance of the law. The lack of transparency, community input and proper review force a legal challenge.”

“One of the primary justifications for the ill conceived Atlantic Yards project has been the creation of much needed affordable housing,” said Michelle de la Uz, Executive Director of the Fifth Avenue Committee. “However, the modified plan recently passed by ESDC includes only one tenth of the affordable housing originally promised and does not even guarantee that the remainder would ever be built.”

“So far, what we have seen of public dollars being spent at Atlantic Yards has been the use of City funds to purchase and demolish homes and properties within the foot print,” commented Deb Howard, Executive Director of Pratt Area Community Council. “The result will be the clearing of land to create a massive parking lot for the arena. Blight and traffic will continue to paralyze the neighborhood for many years to come. Our neighborhood and the city tax payers deserve better,” she added.

Copies of the lawsuit can be obtained through the contacts listed above or by emailing attorney Albert Butzel: albutzel@nyc.rr.com.

In a post headlined Eminent Domain Ruling Expected Soon...What Will it Mean?, Develop Don't Destroy Brooklyn is trying to manage expectations ahead of the anticipated ruling--it could be as early as today, next Monday or Tuesday--by the Court of Appeals in the Atlantic Yards eminent domain case.

From DDDB:

We expect the Court to rule in the plaintiffs' favor, so they can keep their homes and businesses
If the Court does, the project is dead.

But if the Court rules against the plaintiffs, the fight against the project is far from over.

Yes, there are other roadblocks--three lawsuits and an effort to get tax-exempt arena bonds rated and purchased in a tough market.

But the eminent domain case is the biggest one.

And, from the perspective of AY opponents, it's at best a toss-up. State eminent domain jurisprudence has been mostly in favor of condemnors. Then again, historical tides have been shifting.

New lawsuit challenging AY approval to be announced today by BrooklynSpeaks members, elected officials, others

Atlantic Yards Report

Groups in the BrooklynSpeaks coalition–originally following a “mend-it-don’t-end-it policy”–today will file their first lawsuit, word of which first emerged last month.

It will be interesting to see how much this case, which challenges the Empire State Development Corporation's approval of the Modified General Project Plan and failure to pursue a Supplemental Environmental Impact Statement, overlaps with (and may be consolidated with) a case filed by Develop Don't Destroy Brooklyn that raises some similar issues.

Notably, the lawyer on the new case is Al Butzel of the Urban Environmental Law Center, who led the legal fight against Westway.

NoLandGrab: This coalition of community groups has stood separately from the Develop Don't Destroy Brooklyn coalition, primarily because they were seeking to work with the State and developer Bruce Ratner to mitigate some of the environmental impacts of the project and to find a way to allow for more community input.

However, recently the process took a turn away from more input, when the Empire State Development Corporation and MTA approved changes to the project, leaving these groups out in the cold, with the understanding that a lawsuit would be the only way to make their point and advance the coalition's interests.

November 18, 2009

BROOKLYNSPEAKS MEDIA ADVISORY

Event: Brooklyn Community Organizations and Elected Officials Announce Filing of a Lawsuit against the Empire State Development Corporation (ESDC) and Forest City Ratner Corporation (FCRC); Seeking to Reverse ESDC’s Approval of Atlantic Yards’ Modified General Project Plan

Prominent civic and community development organizations and local elected officials who represent the communities surrounding the Atlantic Yards project will gather on the steps of City Hall on Thursday, November 19th @ 11am to announce the joint filing of a lawsuit that will challenge the ESDC’s approval of the Atlantic Yards Modified General Project Plan.

The suit contends that the plan was approved without sufficient study of the impacts of its extended construction schedule and completion risks. It also alleges that the ESDC has illegally delegated to FCRC much of its governmental power to determine the future content and configuration of the Project. Groups and elected officials filing suit include the Atlantic Avenue LDC, the Brooklyn Heights Association, the Boerum Hill Association, the Fifth Avenue Committee, the Park Slope Civic Council, the Pratt Area Community Council, the Prospect Heights Neighborhood Development Council and State Senator Velmanette Montgomery, Assemblyman Jim Brennan and City Councilmember Letitia James. Attorney Albert K. Butzel of the Urban Environmental Law Center is representing the plaintiffs.

As sponsors of the BrooklynSpeaks initiative, the organizations have tried for three years to engage the ESDC regarding impacts of the Atlantic Yards project on the surrounding communities. This includes putting forth a thoughtful proposal for the governance of the project which proposed a strong advisory role for local elected officials and community residents currently excluded from any meaningful participation.

“Given the agency’s inability to follow through on commitments to provide transparency and oversight to the largest single-source development project in the City’s history, we have found no alternative than to bring suit in order to require a realistic assessment of the long-term impacts of Atlantic Yards before further irreversible action is taken,” says Jo Anne Simon of the Boerum Hill Association.

November 17, 2009

Be Careful What (Change of Law) You Ask For; You Might NOT Get It: Atlantic Yards and 1967's Rejected NYS Constitutional Amendment

Noticing New York

The first rule of proposing a change to the law, by passage of legislation or otherwise, is to consider if you really need the change or whether it is possible to construe the law as already saying what you want it to. Why? Because if you propose a change in law and fail that failure will forever afterwards stand as evidence you CAN’T then interpret the law as already saying what you want it to. This is for two reasons. First, proposing a change in law puts on the record the evidence that everyone and most particularly the legal experts on the subject, believe that the law DOESN’T already say what you are asking it to be changed to say, and second, when the proposed change in law doesn’t pass it shows that those who voted it down (those with authority and from whom the law flows) are opposed to modification of the law to make it say what you proposed.

All this is relevant because in 1967 New York State voters voted against a “public use” amendment to the New York State constitution proposed for the purpose of permitting the use of eminent domain for “economic development.” Even though that amendment was rejected state agencies officials are attempting to use eminent domain in exactly that way at the proposed Atlantic Yards megadevelopment site.

November 11, 2009

Judicial Review of Atlantic Yards Corruption: Laws Should Not Be A "Dead Letter"

Noticing New York

Michael D.D. White tours several hundred years of the history of judicial thought to put Atlantic Yards in context.

Hamilton’s quote: “Laws are a dead letter without courts to expound and define their true meaning and operation” is from the Federalist Papers No. 22, the Federalist Papers being those collected newspaper articles in which Hamilton, James Madison and John Jay pseudonymously argued why the Constitution and its incorporated principles should be adopted. (All of the Federalist Papers were addressed “To the People of the State of New York,” New York being Hamilton’s home state.) We were thinking about this quote in regard to the proposed Atlantic Yards megadevelopment and the various litigations that have been brought to stop it. We have been thinking of the quote in relation to the obligation of the courts to stand up and assume their responsibility to act like courts and give meaning and effect to the law by stopping Atlantic Yards.

We have previously written about the increasing predilection of public development officials to disregard laws for political motivations, encouraged by the feeling that they can do so with impunity. We have also written about how whatever initial doubt might once have existed about their support of Atlantic Yards, public officials such as Mayor Bloomberg and Governor Paterson have long since by their own actions outed the truth that their support for the megadevelopment is corrupt, a commitment to a wired deal abusing eminent domain to give developer Forest City Ratner a no-bid mega-monopoly on a swath of valuable Brooklyn real estate, no matter the harm or absence of public benefit. Laws and fundamental rights are clearly being violated: The only question is whether the courts will let those laws become Hamilton’s “dead letter” by deferring to a fictional version of reality conjured up by governmental officials wherein by pretense and pretext those government officials feign that they have not violated the law and all its basic principles.

If the courts supinely succumb to whatever manufactured fictions public officials trump up as a pretext to steal private property through eminent domain abuse then they have, in essence, abdicated their function out of existence and we are left, for all intents and purposes, without courts or law.

October 29, 2009

Eminent Decision for Brooklyn

Freddy's Brooklyn Roundhouse via YouTube

Couldn't make it to Albany for the Atlantic Yards eminent domain hearing on October 14th? Thanks to Freddy's Brooklyn Roundhouse, you are there.

Freddy's Brooklyn Roundhouse traveled on the bus from Brooklyn to Albany with members of DDDB, including several of the plaintiffs, to the NY State Court of Appeals for the oral arguments in this landmark case.

October 28, 2009

FOILed: waiting for responses from ESDC (and comparing their practices with other agencies)

Atlantic Yards Report

Not all Freedom of Information Law requests are equal  Norman Oder explains why he spends way too much time at the post office.

I suspect some staffers at the Empire State Development Corporation (ESDC) think I'm a bit of a pest, though they're professional and don't say so explicitly. After all, I file regular Freedom of Information Law (FOIL) requests, sometimes a couple each month.

And it usually takes a long time to get responses from the ESDC, especially compared to more responsive agencies such as the Metropolitan Transportation Authority (MTA).

(The ESDC's public affairs office, by contrast, generally responds promptly to my queries, though the level of detail, um, varies.)

Last December, I filed a FOIL request for records explaining whether the ESDC considered the availability of tax-exempt financing for affordable housing when it was approving Atlantic Yards.

For months, I got a certified letter each month explaining that they were still looking, given that my request was broad. That's hard to judge, but it sure seemed like a long time.

In a brief public comment during the last desultory moments of the July 30 public hearing on Atlantic Yards, I mentioned the lingering request and asked for it to be resolved. I finally got a response in August. Coincidence or result? I can't be sure.

October 22, 2009

A Pileup of Lawsuits Slams Atlantic Yards

The Huffington Post
by Daniel Goldstein

There is some misinformation making the rounds out there about the legal fight against developer Bruce Ratner's hugely controversial Atlantic Yards development proposal in Prospect Heights, Brooklyn.
...

The misinformation has intentionally, and unsurprisingly, been spread by Ratner and the state's top business agency the Empire State Development Corporation (ESDC). They claim that they've "won 25 cases" and editorial boards such as The News's pick it up as gospel truth.

It's a lie.
...

Obviously team Ratner's point is to imply that the opposition movement against Atlantic Yards litigates frivolously.

Hardly.

Our adversaries' attorneys have never charged such a thing because there is no legal argument for it. No court has ever ruled that way. That's because our lawsuits have stood on firm legal and constitutional grounds.

What is the public to do when the democratic, political process governing development in New York City is bypassed entirely for the largest development proposal in Brooklyn's history, which was a fixed deal from day one? Who is to blame for litigation when legal corners are continually cut, laws violated and provocative private sector tactics go unchecked, or worse, are applauded by politicians. Where are the charges of frivolity when it comes to Ratner's, Bloomberg's and Paterson's hardheaded goal of building the most expensive arena in history, in the middle of a recession and housing crisis, especially when that taxpayer-subsidized arena would be a money loser for New York City?

Docket

The Brooklyn Paper

In addition, a lawsuit from BrooklynSpeaks coalition members, including the Park Slope Civic Council, Prospect Heights Neighborhood Development Council and the Boerum Hill Association, is expected any day now.

October 21, 2009

Foes of Bruce Ratner and Atlantic Yards hope to run out the clock before ground is broken

NY Daily News
by Erin Durkin

Atlantic Yards opponents who filed two new lawsuits in recent days are hoping to run out the clock on developer Bruce Ratner's project, which must break ground by a year-end deadline.

The two suits, one filed last week and the other on Monday, come as Ratner tries to sell $650 million in bonds and start construction on a new arena for the NBA's Nets by Dec. 31 or lose crucial tax-exempt financing.

Jeff Baker, a lawyer for the 20 neighborhood groups that filed the suit, said they'd ask for an injunction to stop Ratner from breaking ground.

The suit charges that the Empire State Development Corp. broke the law when it approved a revised plan for the $4.9 billion project, which also includes 16 apartment and office towers.

"The ESDC cut corners in order to rush Ratner's project forward for an end-of-year IRS deadline," Baker said, adding the agency "willfully stuck its head in the sand." Plaintiffs say the plan has changed so much that ESDC officials were required to do a new environmental study before voting.

As AY endgame approaches, would judges stop the MTA/ESDC from proceeding? Or might the pending cases affect bond sale?

Atlantic Yards Report

So, how exactly could the latest Atlantic Yards lawsuits, regarding the Metropolitan Transportation Authority's deal with Forest City Ratner and the Empire State Development Corporation's approval, stop progress on the project?

After all, both agencies are likely to go ahead and proceed toward a master closing--as described below--which would be void unless arena bonds are sold by January 1, 2010 or alternative financing is in place by March 1, 2010.

If construction seems imminent, Develop Don't Destroy Brooklyn attorney Jeff Baker stated that the group would "seek an injunction to preserve the status quo and protect our rights." If this injunction is granted, the court would probably require the group to put up a bond, the amount of which "is at the discretion of the court."

October 20, 2009

New Suit Could Sidetrack Atlantic Yards

GlobeSt.com
by Cody Lyon

Opponents of Brooklyn’s planned Atlantic Yards project say their plan has never been to delay the Forest City Ratner Cos. development. Instead, they say the idea is to stop it.

At least that’s what petitioning lead attorney Jeffrey Baker tells GlobeSt.com about this fourth of a series of pending lawsuits facing Empire State Development Corp., the quasi-governmental agency, and FCRC, developer of the 22-acre downtown Brooklyn site that includes a large sports arena meant to house the NBA’s Nets, currently of New Jersey. This latest legal volley was filed Monday in New York State Supreme Court in Manhattan.

But, by holding things up in court, the group may put the brakes on the project, since there’s a Dec. 31 groundbreaking deadline for Forest City Ratner to obtain tax-exempt bond status and its $400-million branding deal with Barclays Bank on the new arena, Barclays Center. The arena has been touted as the potential new home for the Nets, who have a deal with Russian billionaire Mikhail D. Prokhorov who will own 80% of the team contingent upon the team's possible move to Brooklyn.
...

In a statement, an ESDC spokeswoman says the agency “carefully considered whether a SEIS would be required,” but determined in the end that it “was not required.”

NoLandGrab: "Carefully considered?" That couldn't have been said with a straight face. "Careful consideration" on the part of the ESDC consists entirely of "what does Bruce want?" and "what can we maybe get away with?"

Atlantic Yards opponents file another suit

Atlantic Yards opponents filed yet another lawsuit Monday against a $5 billion project proposed for downtown Brooklyn that would include a new basketball arena for the New Jersey Nets.

This lawsuit charges that New York State officials last month approved a revised project plan that anticipates making affordable housing construction at the site conditional on government subsidies being made available to developer Forest City Ratner.

The project plan approved at the same time, however, does not include that condition — leading to an illegal contradiction between the plan and a pending developer’s agreement, according to the suit filed by 20 community groups within and near the project’s footprint.

Atlantic Yards lawsuit fatigue? News of the suit challenging the ESDC's approval of the project is ignored in the dailies

Atlantic Yards Report

Does Atlantic Yards get too much press coverage, or not enough?

So, in yesterday's print New York Times, the Metro pages brought news of Glee! The Retirees’ Talent Show. The Sports section offered For Potential Owner, a Background Check Worthy of the K.G.B.

So, was news of yesterday's suit leveling serious charges against the Empire State Development Corporation (ESDC) regarding the Atlantic Yards approval worth an article in today's print newspaper?

Apparently not. It wasn't even worth an online article. Not in the Times, not in the New York Daily News, and not in the New York Post. (The tabs, however, each ran print Sports section stories about Nets point guard Devin Harris.)

It was covered by the New York Observer, WNYC, Crain's New York Business, Reuters, and the Brooklyn Daily Eagle, plus the Record. Perhaps the once AY-focused Brooklyn Paper will catch up in due time.

October 19, 2009

Suit du Jour News Round-Up

On Monday morning, a series of Brooklyn neighborhood and community groups announced they had filed a suit challenging the approval of the $4.9 billion mega-project, an action that comes as the clock ticks ever closer to a Dec. 31 financing deadline that developer Forest City Ratner must meet.

The lawsuit--which challenges the approval process when the state re-approved a modified version of the project in September--is now the fifth major suit brought or organized by the main group opposing the plan, Develop Don't Destroy Brooklyn. There have been two eminent domain suits, the second of which was heard at the state's top court last week; an environmental review lawsuit; and a recently filed lawsuit challenging the re-approval by the M.T.A., which owns much of the site.

Develop Don't Destroy Brooklyn and 19 other Brooklyn groups say the latest agreement between the state and developer Forest City Ratner will keep at least some of the footprint in a blighted state for 20 years or more, as it allows Ratner to purchase the land parcel-by-parcel over that time.

The state's highest court is considering whether to accept a challenge by many of the same plaintiffs to the original deal.

Attorney Jeff Baker filed both lawsuits. "This deal's even worse because there's far less assurance that the negligible benefits that were supposed to come from this project will ever happen at all," Baker says.

A spokesperson for the state's economic development agency says officials expect construction will take only 10 years.

It's official: Atlantic Yards now has more lawsuits than the Nets have season ticket holders. Develop Don't Destroy Brooklyn has brought its fifth suit against the project, calling a do-over on the state's environmental review of the site because the Atlantic Yards plans have changed so much since they were first proposed.

Allegations in the suit filed in New York State Supreme Court on Monday include charges that the ESDC failed to conduct another environment impact study of the 22-acre site as required after the deal was revised. It also includes allegations that the ESDC backed off its requirement to have Forest City build affordable housing within the project.

The ESDC, developer Bruce Ratner and the Metropolitan Transportation Authority have spent six years pursuing the project which has been dogged by legal disputes, financing problems and vocal opposition from community groups and landowners.

The latest suit argues that the ESDC has illegally abandoned the statutorily mandated purpose of the project -- the removal of blight from the area.

That's after the terms of the deal were revised in June to offer sweeter terms to Ratner. Ratner had agreed in 2005 to buy the 22-acre rail yard for $100 million in cash at the time of closing. But the cash-hungry MTA is allowing him to pay just $20 million on closing and the remaining $80 million over 22 year. That will ensure the blight conditions will not be alleviated until well after 2030, the suit said.

Opponents of the Atlantic Yards development in Brooklyn, the proposed site that would contain a new arena for the Nets, filed another lawsuit today at the State of New York Supreme Court designed to sink the project once and for all.

Never-ending lawsuits, perhaps not. But opponents of Atlantic Yards filed another lawsuit Monday — the second in less than a week.
...

Back in May, DDDB’s legal director told the Eagle that DDDB and its supporters had about a half-dozen potential lawsuits they could file in addition to the various lawsuits that were already pending over the Atlantic Yards project.

“Can we bring other challenges? Absolutely,” Candace Carponter had said. “And we will.” Carponter added that, “It just depends on who’s got more stamina” — making it clear that DDDB and Atlantic Yards opponents will not stop suing anytime soon.
...

However, considering the expansive amount of litigation that is pending and the additional lawsuits that could come (i.e., a taxpayer suit), legal experts wonder if Atlantic Yards construction will begin by the end of the year, as promised. If not, it would be one of many promised timeline goals that have not been met by the developer.

Twenty community groups, led by Develop Don't Destroy Brooklyn (DDDB) and the Council of Brooklyn Neighborhoods (CBN), today filed suit in state court against the Empire State Development Corporation (ESDC) and Forest City Ratner (FCR), aiming to annul the ESDC's 9/17/09 approval of the 2009 Modified General Project Plan (MGPP) for what is formally called the Atlantic Yards Land Use Improvement and Civic Project.

In essence, the lawsuit charges that the state agency, rather than take a "hard look"--as required by state law--and delay its approval process, instead bowed to the developer's timetable to move the project forward so tax-exempt arena bonds could be issued by a crucial end-of-year deadline.

While I and others have suggested that the pending eminent domain lawsuit is the only case that could formally stop the project, DDDB asserts this lawsuit could doom the project, given that it would reverse the ESDC's approval of the project--and, presumably, that the ESDC could not, in light of the charges, revise its approval in a timely and legitimate fashion.

DDDB PRESS RELEASE: 20 Co-Petitioners Sue Empire State Development Corp. and Forest City Ratner For Illegal Actions Taken in Approval of Atlantic Yards Project

Lawsuits Pile Up Against the Besieged Project As Community Lawsuit Seeks to Annul Project's Approval on Multiple Legal Grounds

BROOKLYN, NY— The Empire State Development Corporation (ESDC) has clearly and illegally abandoned the statutorily mandated purpose—a plan to remove "blight"—of Forest City Ratner's (FCR) Atlantic Yards development plan in Prospect Heights, Brooklyn.

The ESDC has stated its intention to illegally contradict the project's governing document (the Modified General Project Plan or MGPP) with a separate "development agreement" that would make the proposed Atlantic Yards "affordable" housing component completely conditioned upon the availability of public subsidies. The MGPP requires no such conditions.

The ESDC has illegally concluded that a Supplemental Environmental Impact Statement (SEIS) is not required for Forest City Ratner's substantially and significantly changed Atlantic Yards development proposal.

The lawsuit has broad community support with twenty co-petitioners representing all of the communities surrounding the project site, and beyond. Jeffrey S. Baker of Young, Sommer, Ward, Ritzenberg, Baker & Moore is the lead attorney.

"The ESDC cut corners in order to rush Ratner's project forward for an end-of-year IRS deadline. In so doing it has egregiously violated state laws governing environmental reviews and urban renewal," said lead attorney Jeffrey Baker. "ESDC willfully stuck its head in the sand regarding the new Ratner deal with the MTA [PDF]. That new deal guarantees that the project, contrary to the legal requirement to remove alleged ‘blight,' will exacerbate the ‘blight' and make it permanent."

"It has been clear for a long time that the ESDC has worked officiously to serve as Ratner's tool in government. It has once again taken numerous corner-cutting and illegal actions, which contrary to its goals, will doom the project," said DDDB legal chair Candace Carponter. "It is also a terrible shame that we have had to bring this lawsuit to expose the fact that ESDC has quietly made the ‘affordable' housing conditioned upon public subsidies, in contradiction with its approval document. Holding ESDC and Ratner accountable on the ‘affordable' housing is something that Ratner's partner ACORN should have been doing, but clearly hasn't been able to because it is financially in hock to the developer and contractually obliged to support his project."

With this new lawsuit there are now four pending lawsuits against the ESDC, Forest City Ratner, and the MTA, alleging various illegal actions taken in their six-year long pursuit of the Atlantic Yards development proposal.

1. The ESDC Has Abandoned the Legally Mandated Purpose of the Project:

The ESDC has designated the entire non-arena portion of the project as a Land Use Improvement Project (LUIP) under the Urban Development Corporation Act (UDCA). But the ESDC's 2009 MGPP fails to meet, and thus violates, the requirements of the UDCA because it does not present a plan to alleviate the alleged blighting and blighted conditions at the project site, and therefore cannot be an LUIP.

The abandonment of such a plan, and thus the purpose of the project, is guaranteed by the terms of the new deal to sell the Vanderbilt Yards to Ratner, which the MTA approved this past June. That deal guarantees that the blight conditions will not be alleviated until well after 2030 or ever.

The reality is that, at a minimum, the project area will remain either undeveloped or in a long term construction phase stretching decades that will not alleviate blight but rather exacerbate it and make it a permanent condition. The ESDC has made an illegal determination under the UDCA and, therefore, has no authority to approve or oversee the project.

The development agreement that supposedly commits FCR to complete the project does not have a time limit and only requires it to build less than two-thirds of the residential units, leaving significant amount of the "blighted" area in its unattractive state.

Petitioners have always challenged ESDC's finding that the southern part of the project area is blighted. While those challenges are still pending before the New York State Court of Appeals, for the purpose of ESDC's current actions it is accepted that the ESDC's blight finding is the basis and purpose of ESDC's approval of the project. However, at this point ESDC has ignored the fact that the project will take decades, if ever, to complete and has no plan to assure that the blight will actually be eliminated. This demonstrates that the alleviation of blight was never the real intent of ESDC's approval, but was just a pretext to facilitate approvals for a favored, private developer's land grab.

Therefore, the September 17, 2009 ESDC resolution under the UDCA must be annulled.

2. The ESDC's Approval is Inconsistent on Conditions for Affordable Housing

The ESDC's Modified General Project Plan, approved on September 17, 2009, requires the construction of 2,250 "affordable housing" units within the project. This is an unconditional requirement in the MGPP. But the ESDC is apparently poised to approve a "development agreement" in contradiction with the MGPP, which states that construction of those "affordable" units are "subject to governmental authorities making …affordable housing subsidies" available to Forest City Ratner.

The ESDC Board's approval of the MGPP, which authorized its staff to enter into the "development agreement" to complete the project, is illegal as it includes a material term to avoid providing affordable housing, which is inconsistent with the MGPP.

Therefore, the September 17, 2009 ESDC resolution allowing agreements that contradict the MGPP must be annulled.

3. The ESDC Abused Its Discretion When it Failed to Issue a Supplemental Environmental Impact Statement (SEIS)

The ESDC irrationally and unreasonably maintained that the project would take ten years to construct by ignoring the fundamental changes brought about by the new MTA transaction and other clear, expert evidence that completion of the project would extend decades, if ever completed at all.

The new deal with the MTA constituted both a substantial change in the project and in circumstances, which raised new issues concerning both the timing and completion of the project.

By failing to even recognize the new MTA terms, the ESDC failed to identify the relevant issues and take the hard look necessary to make its determination that an SEIS was not necessary. Instead, the ESDC undertook an artificial environmental review under the State Environmental Quality Review Act (SEQRA) that was based upon a project completion in 2019 instead of 2030 or later.

ESDC never responded to the expert report by Kahr Real Estate Services [PDF] that found the project not economically feasible and incapable of completion for at least 20 years. Instead, ESDC relied upon a report by KPMG [PDF], which unconvincingly said a 10-year time frame was "not unreasonable". Kahr Real Estate Services reviewed the recently released KPMG report and part of this lawsuit includes an affidavit from Kahr [PDF] that sharply criticizes the KPMG report as fatally flawed and inadequate to support ESDC's findings.

ESDC failed to identify substantial changes in the project and take a hard look at the potential environmental impacts and determined, contrary to the requirements of SEQRA, that an SEIS was not necessary. This was an arbitrary and capricious decision, and an abuse of discretion.

Because of this, ESDC's September 17, 2009 determination that an SEIS was not necessary must be annulled.

Los Angeles, Are You Ready For Some NFL Football?

NBCLosAngeles.com
By John Adams

Gov. Arnold Schwarzenegger said he's going to sign an environmental exemption bill that will clear the way for construction of the LA Stadium.

State senators approved the bill, which would nullify a lawsuit over the project's environmental impact report by citizens in neighboring Walnut. Schwarzenegger is expected to sign the bill in support of the stadium because its impact on the local economy and its ability to generate jobs.

There will be more than 6,700 new jobs created because of the stadium, causing an addition $21 million in new tax revenue and $762 million in new economic activity, according to an LA Stadium spokesperson.

NoLandGrab: It's Bruce Ratner's wet dream  imagine if NY Governor Paterson signed a bill that would provide an exemption to supercede the Environmental Impact Statement, thus clearing several lawsuits, including one that is scheduled to be filed today.

October 17, 2009

All In On Atlantic Yards

An item insde "The Frank McCourt Chronicles: A Semi-Regular Look at Sports and the Law" encapsulates legal developments regarding the proposed Atlantic Yards project from this past week.

Before Russian billionaire Mikhail Prokhorov and his New Jersey Nets begin playing in Brooklyn, New York's top court must rule on a civil suit seeking to block the multi-billion dollar real estate complex that includes a new arena, offices, stores, and apartments.

Landowners represented by Matthew Brinckerhoff from New York's Emery Celli Brinckerhoff & Abady are suing a state agency using eminent domain to seize land for the Atlantic Yards development. Bryan Cave's Philip Karmel and J. Kevin Healy and New York's Berger & Webb are advising the Empire State Development Corporation, which is seeking to sell the land to developer Bruce Ratner.

Reuters reports that Ratner must begin building an arena for the basketball team before the year's end or he will lose out on $700 million of low-cost, tax-free debt. (Consumer advocates and public officials filed another suit this week seeking to block a related land sale to Ratner.)

October 16, 2009

Atlantic Yards: Court of Appeals Hears Case

GlobeSt.com
by Joel Stashenko

GlobeSt. posted a note that "this story appeared in a slightly different form originally in the New York Law Journal." We had that story yesterday, but we don't know what's different, so we've included a link to the GlobeSt. version below. Again, we caution that the article errs in a few places regarding details about the Atlantic Yards project.

October 15, 2009

Atlantic Yards at New York's High Court

The Observer's Eliot Brown, camera in hand, files a thorough (and entertaining) report, complete with slideshow, from the New York State Court of Appeals.

Three Years of Litigation

For the planned Atlantic Yards project in Brooklyn, it’s been an exhaustive three-year journey of eminent domain-related lawsuits. Starting in October 2006, challenges to the use of state condemnation for the private development have constantly been in courts, first traveling up through the federal court system and then on to the state courts.

Now the voyage is clearly nearing an end. On Wednesday, an eminent domain suit brought by business and property owners in the project’s footprint went before New York’s highest court, the Court of Appeals, for oral arguments. A victory here by the landowners would kill the $4.9 billion project—the planned new home of the Nets—though such a win is considered unlikely, and they’ve lost at every step of the way in their process.

The Observer headed up to join the fun in the capital, so here’s a few pictures from the day.

Court Weighing Eminent Domain

This story appeared in yesterday's print edition and in the online version of The Journal.

New York's highest court is set to hear arguments Wednesday in a case that will decide whether the state government can lawfully seize private property for a development company.

The case pits the New York State Urban Development Corp., a government agency, against nearly a dozen land owners who say the state constitution bars the government from stripping the rights of private parties to benefit a developer that aims to build a new arena for the New Jersey Nets basketball team. The developer, Forest City Ratner Cos., is currently one of the owners of the Nets.

"The state is taking my home and other people's homes, not for the public use, but to give an extraordinary benefit to the developer," said the lead petitioner, Daniel Goldstein, one of the few remaining residents within the 22-acre site slated to be demolished. "It's not a public use. For the government to take my home to enrich any developer...is wrong and I believe is illegal."

Atlantic Yards Project Reaches NYS High Court

The state's constitution, like the federal one, says government can take private property only if it's for public use. But the definition of public use is up for interpretation.

The tenants and property owners pressing this case say the benefits to the public should outweigh the profits to the developer- but, they say, the state never bothered to make that calculation when it came to Atlantic Yards.

Lawyers for the state are arguing that a 1938 amendment to the state constitution makes that point moot, since it allows eminent domain to be used for slum clearance.

A decision is expected in the next four to six weeks, and if it favors the opponents, it could doom the project. But the plaintiffs lost a similar series of cases in federal courts.

MTA Faces Atlantic Yards Suit

GlobeSt.com
by Cody Lyon

A group of politicians, activists and transit activists have filed suit in New York State Supreme Court in Manhattan, saying the Metropolitan Transportation Authority violated the Public Authorities Accountability Act of 2005 when it sold the air rights over the agency’s Vanderbilt Yard to Forest City Ratner Cos. for development at the Atlantic Yards Project. The latest suit was filed one day prior to Wednesday’s hearing before the Court of Appeals in Albany, which seeks to challenge the Empire State Development Corp.’s use of eminent domain for the same project.

According to the lawsuit, which names the MTA and FCRC as respondents, the MTA violated state law by failing to obtain an independent appraisal for the Vanderbilt Yard property and failing to seek out competitive bids. The group is now asking the court to annul the MTA’s June agreement with FCRC. It’s reportedly the first Atlantic Yards suit brought in part by politicians.
...

The cheaper selling price came despite previous iterations by MTA CFO Gary Dellaverson, who had earlier valued the property at $240 million to $250 million.

A spokesman for [State Senator Velmanette] Montgomery tells GlobeSt.com that "all this would be funny if it weren’t the Atlantic Yards project." He adds, "The MTA’s actions are shocking. The fact is that the public is being hit with fare hikes and schedule cuts while giving developers a free ride."

A NYPIRG/Straphangers spokesperson tells GlobeSt.com that it’s "the riders who are getting it in the neck. They are going to lose out on improvements like new subway cars, buses and track improvements."

Atlantic Yards lawsuits filed and heard

The Courier reports on the just-filed MTA lawsuit, and yesterday's oral arguments at the Court of Appeals.

Also in Albany for the court hearing were several local grassroots groups who have long favored the project.

The "several local grassroots groups" amounted to about a half-dozen people, including James Caldwell and Marie Louis of BUILD, and one-time City Council hopeful Delia Hunley Adossa, point person for the Atlantic Yards Community Benefits Agreement, all of whom have received money from Forest City Ratner.

“We were in Albany to voice our support in terms of wanting to see the project move forward,” said Marie Louis, chief operating officer of BUILD (Brooklyn United for Innovative Development), which received funding from the developer as per a community benefits agreement for local workforce development.

Witt has used the "as per the" CBA line before, as if these groups are only taking money from Ratner because they're legally obligated to do so.

“We also believe these frivolous lawsuits need to be put to rest because all they want to do is delay the project and kill it. The need for jobs and affordable housing is even more intense given the economic climate,” she said.

Judges Ponder Constitutionality of State's Use of Eminent Domain for Atlantic Yards Project

New York Law Journal
by Joel Stashenko

This review of yesterday's court arguments gets some project details wrong, but includes some interesting snippets of exchanges between the justices and counsel, including this one.

Matthew D. Brinckerhoff countered for project opponents that the nearly $4 billion Atlantic Yards, whose centerpiece would be a new arena for the NBA's New Jersey Nets, does not fit the Public Use Clause of Article I, §7 of the state Constitution.

The clause, which first appeared in the Constitution in 1821, prohibits taking private property for public use without just compensation. Mr. Brinckerhoff argued that Empire State Development failed to show how the project meets the definition of "public use" that has developed in state courts since.

"Won't it provide recreation facilities for the residents of Brooklyn, athletic facilities for school children, etc.?" Judge Carmen Beauchamp Ciparick asked Mr. Brinckerhoff. "Is that part of the proposed plan? …That's a public purpose, right?"

"Right, but I don't think anybody can argue that its primary purpose is to provide facilities to community groups," Mr. Brinckerhoff replied. "It's primary purpose is to house a for-profit professional basketball organization."

article [subscription or free trial sub required  full story after the jump]

ALBANY - The state's highest court yesterday confronted the issue of whether eminent domain should have been used to advance a massive private development in Brooklyn.

Philip E. Karmel, arguing for the Empire State Development Corp. on behalf of developer Bruce C. Ratner's Atlantic Yards project, told the Court of Appeals that the development would replace 22 acres of largely "substandard and unsanitary" land.

"It's extremely well-established, from many, many decades that that is an adequate constitutional basis for use of eminent domain," Mr. Karmel told the judges in Matter of Goldstein v. New York State Urban Development Corp., 178.

Matthew D. Brinckerhoff countered for project opponents that the nearly $4 billion Atlantic Yards, whose centerpiece would be a new arena for the NBA's New Jersey Nets, does not fit the Public Use Clause of Article I, §7 of the state Constitution.

The clause, which first appeared in the Constitution in 1821, prohibits taking private property for public use without just compensation. Mr. Brinckerhoff argued that Empire State Development failed to show how the project meets the definition of "public use" that has developed in state courts since.

"Won't it provide recreation facilities for the residents of Brooklyn, athletic facilities for school children, etc.?" Judge Carmen Beauchamp Ciparick asked Mr. Brinckerhoff. "Is that part of the proposed plan? …That's a public purpose, right?"

"Right, but I don't think anybody can argue that its primary purpose is to provide facilities to community groups," Mr. Brinckerhoff replied. "It's primary purpose is to house a for-profit professional basketball organization."

Mr. Brinckerhoff argued that Empire State Development failed to properly make an accounting of the projected private benefits of the project to Mr. Ratner and his Forest City Ratner Companies and weigh those against the benefits to the public before allowing the project to go forward in 2006.

At that time, the state agency authorized the condemnation and taking of 123 parcels of privately owned land, or about 20 percent of the property in the project zone. Some landowners have since sold out to Forest City Ratner.

Though little or no work has been done on the project for months, Mr. Ratner has recently reached an agreement to have Russian billionaire Mikhail D. Prokhorov invest $200 million in the Nets, the 18,000-seat arena and in Atlantic Yards in exchange for an ownership share in all three. He faces an end-of-the-year deadline to break ground.

There was limited discussion before the Court yesterday about the U.S. Supreme Court's controversial ruling in Kelo v. City of New London, 545 U.S. 469 (2005). Kelo allowed, with what critics called an overly broad definition of "public use" under the Fifth Amendment to the U.S. Constitution, the taking of private land for a private development in Connecticut.

"Are you asking us to follow Kelo and say that any public use is good enough, or do you acknowledge that you have to show blight here to justify the use of the eminent domain power?" the judge asked.

"The result in this case is the same whether you follow Kelo or you don't follow Kelo" based on the state Constitution and case law, Mr. Karmel replied.

State Precedent

Justices Susan Phillips Read and Victoria A. Graffeo both said at several points they wanted to know more about state precedents and how they relate to the use of eminent domain under the state Constitution.

Mr. Brinckerhoff also challenged whether public funding for Atlantic Yards—the state and the city have each pledged $100 million—is legal under Article XVIII, §6 of the state Constitution. It allows public financing for residential housing projects only when low-income units are being replaced by other low-income units.

Chief Judge Jonathan Lippman asked whether public funding was going to the project in violation of Article XVIII, §6.

"Are public subsidies going to market-rate housing here?" he asked.

"No," Mr. Karmel responded.

"There are no public subsidies going to market-rate housing?" Judge Lippman asked again.

"The only subsidies identified in the record are the $100 million appropriation by the state Legislature, which is for a state-owned arena and a state-owned rail yard," Mr. Karmel said. "The state has had the authority to fund state-run facilities of that kind forever."

Mr. Karmel said city funding for the project was not subject to Article XVIII, §6.

Filing Timeframe

The judges also probed both sides on whether the state court action before the Court yesterday was filed in a timely fashion. The plaintiffs challenging Empire State Development's approval of the project went first to federal court and, Mr. Karmel contended, missed a 30-day filing notice in state court as they were pursuing their federal claims.

"Can that serve to toll for a couple of years the 30-day requirement in the [Eminent Domain Procedure Law]?" Judge Read asked. "That seems to be the implication."

"I think there is no question that it can and it did here," Mr. Brinckerhoff argued.

The judges yesterday heard an appeal of an Appellate Division, Second Department, unanimous ruling rejecting arguments by Atlantic Yards' opponents that the project's environmental impact statement and use of eminent domain are improper (NYLJ, May 18).

The prime organizer, the coalition Develop Don't Destroy Brooklyn, also tried unsuccessfully to challenge the project and the Empire State Development Corp.'s approval of it in another state court action, Develop Don't Destroy Brooklyn v. Urban Development Corp., (NYLJ, Feb. 27), and in a federal court case, Goldstein v. Pataki, in which the U.S. Supreme Court ultimately denied certiorari (NYLJ, June 24, 2008).

J. Kevin Healy of Bryan Cave and Charles S. Webb III and Kenneth J. Applebaum of Berger & Webb are also representing the Empire State Development Corp.

Eric Hecker of South Brooklyn Legal Services is aiding Mr. Brinckerhoff's representation of the plaintiffs.

In an amicus brief filed in support of the Atlantic Yards project, New York City's Law Department argued that many privately developed projects have been made possible in the city by the condemnation of private property.

Kelo has prompted the filing of a series of bills in the New York state Legislature concerning the use of eminent domain. In 2009, they included A1568/S1669, which would give citizens more time to contest proposed property takings, and A1570/1670, to create an eminent domain ombudsman to ensure the even-handed application of the condemnation of private property.

Again this year, none of the bills gained traction.

The Arlington, Va.-based Institute for Justice, which represented property owners in Kelo, released a report last week in which it named New York as among the most permissive states in the country for the use of eminent domain to aid in the development of private projects. It cited recent projects sponsored by the New York Stock Exchange, Costco and Stop & Shop as among those in which private businesses benefitted from the public taking of private property.

Another Suit Filed

On Tuesday, the Straphangers Campaign of the New York Public Interest Research Group, Develop Don't Destroy Brooklyn and several lawmakers filed another suit related to the Brooklyn Yards project.

The Manhattan Supreme Court suit alleges that the sale by the Metropolitan Transportation Authority of its Vanderbilt Rail Yard to Forest City Ratner vastly undervalued the true worth of the 8.5-acre property. (See the Verified Petition and the Petitioners Memorandum of Law.)

The rail yard, owned by the MTA's Long Island Railroad Co., accounts for about 40 percent of the Atlantic Yards site.

The Court of Appeals is expected to hand down a ruling by the end of November in the case it heard yesterday.

Mr. Prokhorov's investment deal is contingent on Forest City Ratner's securing title to the remaining parcels at the site as well as financing for the project by Jan. 1.

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It came from the Blogosphere...

A missed deadline and public purpose dominated the Atlantic Yards eminent domain hearing at the State Court of Appeals Wednesday. Judges wondered if by going first to federal court two years ago, critics had missed a deadline for challenging eminent domain in state court. They also questioned the state’s lawyers over the project’s public purpose and the extent of blight at the site. A ruling is expected next month.

The New York Court of Appeals is hearing arguments today about the Atlantic Yards project, where challenges to the right to condemn were filed by several owners and interest groups. Lower courts upheld the condemning agency’s right to condemn.

While the Atlantic Yards' eminent domain case begins in court today, Develop Don’t Destroy Brooklyn and four elected officials filed another suit in the state's Supreme Court yesterday against the Metropolitan Transit Authority, claiming that its sale of land to developer Forest City Ratner violates state law.... According to DDDB, "an annulment [of the sale] would disallow the transfer of the property, which the developer requires for its project, including its proposed basketball arena, until the M.T.A. complied with the law."

Good for you MTA, a little pre-holiday present for you. To call the MTA part of the axis of corrupt New York City bastards would be unkind, so let’s just congratulate you on a job done behind closed doors.

October 13, 2009

Atlantic Yards foes land another lawsuit

A day before New York's highest court will hear their case to block the Atlantic Yards project, opponents filed yet another lawsuit to stop the massive development in Brooklyn.

On Tuesday, opponents, including the nonprofit group Develop Don't Destroy Brooklyn and four elected officials, sued The Metropolitan Transportation Authority over the revised deal it struck in June to sell the 8.5 acre Vanderbilt Rail Yard to developer Forest City Ratner for $100 million.

It came from the Blogosphere... (new MTA lawsuit edition)

With just one day to go before New York state's top court holds its hearing on the final eminent domain case against Bruce Ratner's Atlantic Yards project, another court challenge has emerged: Four local elected officials, the New York Public Interest Research Group, and the ubiquitous Develop Don't Destroy Brooklyn are suing the Metropolitan Transportation Authority over its agreement this summer to sell land to Ratner for a cut-rate price. (An even more cut-rate price than the MTA originally agreed to, that is.)
...

The real question now is whether another lawsuit will make it too expensive for Ratner to get bond insurance so he can start selling arena bonds this month as planned.

For those hoping that the only court we would be talking about after tomorrow was the basketball court, I am sorry, but that isn’t going to happen. Develop Don’t Destroy Brooklyn sent out a press release this morning stating that they, along with a few elected officials and the Straphangers Campaign have sued the MTA.
...

This suit is yet another case that the Nets are going to have to deal with and resolve before they can put the shovel in the ground. This might not be the last one either as Mark has alluded to, there’s buzz that they want to sue the Empire State Development Corp. as well. This now turns into a clock management issue (mandatory sports term!) for the Nets and their lawyers as they continue to navigate the legal obstacles that DDDB put out.

Critics of the Nets’ new arena, along with four city and state officials, have filed suit against the Metropolitan Transportation Agency, claiming it illegally renegotiated and approved an agreement on the railyards beneath the project. Bruce Ratner had agreed to buy the yards for $100 million and upgrade it as part of Atlantic Yards, then asked that the price be stretched out 22 years and the new yard shortened.

As I summarized in June, this new deal for Ratner is blatantly outrageous. I wrote four months ago:

So what did the MTA do? Well, instead of opening up the process to a new round of bidders and requests for proposals, the agency has simply sweetened the deal for Ratner. Instead of a lump sum payment of $100 million, he will pay just $20 million upfront and cover his purchase in installments totaling $80 million over the next 22 years. He will pay $2 million a year from 2012-2016 and then $11 million a year for the following 15 years. Instead of a $225 million rail facility, he will supply one with three-quarters of the original plan capacity for $150 million instead.

At the time, MTA Board members protested the deal, and now the politicians are angry. This could be a long fight for the MTA, and an injunction against the sale could impact Ratner’s ability to secure financing. He has until the end of the year to secure $700 million in tax-free bonds for the Barclays Arena.

It came from the Blogosphere... (eminent domain appeal edition)

One of the hypertechnical pretextual confusions the government agencies and Forest City Ratner are purposely fomenting involves whether Atlantic Yards is to be considered as an economic development project or alternately a blight removal project. In truth, it is absolutely neither, but the government would have it pretextually be whatever they can get away with.

If the mega-project is an economic development project (which government officials are probably most instinctively prone to promote it as- and often do in the press), it makes no sense that no cost-benefit analysis has been done to demonstrate its justification. If it is instead a blight removal project then it hardly makes sense for the public to be spending billions to remove “weeds” from a gentrifying neighborhood, virtually the same weeds you can find anywhere, including the borough’s best neighborhoods like Brooklyn Heights and Park Slope. If the pretextual goal is to remove blight that still implies that there should be a “weighing” in a sort of cost-benefit fashion that more blight will be removed than created. Not so! There has been no such weighing and instead it is the reverse. Ratner’s plan creates “more” blight (actual real blight) than the ostensible blight it pretextually removes.

The WSJ certainly chooses a side in the matter, saying that private beneficiaries like Costco, Ikea, Stop and Shop, The New York Times, and the New York Stock Exchange have all benefited from the condemnation of "small businesses, homes, and church property." The article adds: "In eminent domain cases, the political class typically uses its power to help the strongest private interests against the weakest ... Other states, like New Jersey, have seen stricter standards for eminent domain actions implemented through the courts. But New York is a draconian holdout. The Brooklyn case offers the courts a chance to tell the political class and its developer friends that they can't trample over private property rights."

Forest City Ratner's huge (now half stalled) Atlantic Yards project has been controversial, particularly with regard to the use (some would say abuse) of eminent domain.
...

a rare political/legal/philosophical opinion from 21 elephants: Eminent domain was a tool intended to be applied with care. The bar must be set relatively high, as one of the foundations of our system was based on freedom from capricious infringements of personal and property rights. This principle has also given the US a strong foundation for commerce (along with respect for the sanctity of contracts).

Suit Challenges Sale of Land to Atlantic Yards Developer

City Room
by Charles V. Bagli

With the Atlantic Yards project in Brooklyn inching closer to a ground-breaking, opponents of the 22-acre development filed another lawsuit on Tuesday morning challenging the Metropolitan Transportation Authority’s decision to sell the developer a portion of the land in what it says is a sweetheart deal that violates state law.

The suit, filed by Develop Don’t Destroy Brooklyn and four elected officials, asks the State Supreme Court to nullify the authority’s recent deal to sell an 8.5-acre railyard at the intersection of Flatbush and Atlantic Avenues to the developer Bruce C. Ratner without first getting an independent appraisal and soliciting competing offers for the property.
...

A spokesman for the M.T.A. declined to comment on the lawsuit, the fifth filed by Develop Don’t Destroy Brooklyn. This suit, however, marks the first time that elected officials have joined them.

Lawmakers sue MTA for Ratner's 'sweetheart' arena deal

NYPost.com
by Rich Calder

The MTA today was banged with a lawsuit over a recent “sweetheart deal” it gave developer Bruce Ratner to bail out his controversial Atlantic Yards project that includes building an arena in Brooklyn for the NBA’s Nets.

The suit, filed by several lawmakers, seeks to annul the Metropolitan Transportation Authority’s revised deal with Ratner in June that allows the mega-developer to pay off $100 million he owes the agency over 22 years for the 8.5-acre Vanderbilt rail yard site in Prospect Heights and also shave off more than $100 million of the $345 million in transit improvements he had promised there.

It alleges the cash-strapped agency violated the Public Authorities Accountability Act by failing to obtain an independent appraisal of the site or solicit competitive offers before agreeing to a new deal.
...

The revised MTA plan allows Ratner to pay $20 million up front for the rail yard, and then spread out $80 million in payments over 22 years at a bargain interest rate of 6.5 percent.

Ratner in 2005 agreed to pay the agency $100 million up front, plus provide rail yard upgrades in exchange for various state approvals needed for the project. He cut that deal despite being outbid.

The new rail yard would be reduced from what was to be nine tracks with a capacity for 76 cars -- and worth $250 million -- to seven tracks that could handle 56.
...

Ratner’s $100 million bid for the site in 2005 was $50 million lower than a rival proposal by Extell Development. An agency appraisal before that deal found the rail yard worth $214.5 million.

Ratner won after convincing the board the offer was worth $445 million with the transit upgrades.

New Yards suit — one day before the old Yards suit

The Brooklyn Paper
by Gersh Kuntzman

One day before a climactic court hearing that could clear a major legal barrier for Bruce Ratner, opponents of the developer’s residential, retail, office and arena mega-project filed another lawsuit today, this time challenging the Metropolitan Transportation Authority’s mid-summer “sweetheart” renegotiation with Ratner.

The suit, filed this morning in state Supreme Court in Manhattan by a panoply of state legislators, plus Councilwoman Letitia James (D–Fort Greene), the NYPIRG/Straphangers Campaign and Develop Don’t Destroy Brooklyn, seeks the annulment of that June deal to sell the Vanderbilt rail yard near the intersection of Flatbush and Atlantic avenues with just a $20-million down payment.
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Opponents argue that the new law required the MTA “to obtain any appraisal of the current value of the yard [and] entertain any competing proposal for the yard.”

But when it rubber-stamped the renegotiated deal with Ratner in June, the agency did not seek new bids.

Instead, the MTA “capitulated to [Ratner’s] demand and negotiated a disposition of the Vanderbilt Yard on terms significantly more favorable to [Ratner] than were approved in September, 2005,” the brief states.

Well, maybe the eminent domain case is not the only court challenge that could jeopardize the Atlantic Yards plan.
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I'll have more on this later, but here's one tidbit from the legal petition: In effect, MTA agreed to finance 80 percent of FCR’s purchase of the Yard at a generous 6.5 percent interest rate, while Forest City Enterprises had a junk bond rating.

Suit Says MTA Violated State Law and Atlantic Yards Deal Between Ratner and MTA Must Be Annulled

NEW YORK, NY — The Metropolitan Transportation Authority (MTA) was sued today for the June 24th deal it made to sell its 8.5-acre Vanderbilt Rail Yard to developer Forest City Ratner for its proposed 22-acre Atlantic Yards plan in Prospect Heights, Brooklyn.

"While the MTA is forcing service cuts and fare increases on the people of New York, they are giving Forest City Ratner just about a free ride. We have laws in this state that forbid these kinds of sweetheart deals. You can’t short change the public to benefit a developer,” said lead plaintiff, state Senator Velmanette Montgomery. “With the Atlantic Yards, the MTA violated our legislation and the public trust. Their sale of the Vanderbilt Yard to Ratner must be annulled."

The suit seeks the annulment of the MTA’s deal to sell the rail yard to Forest City Ratner because it violated requirements of legislation meant to rein in the abuses of New York State’s public authorities. An annulment would disallow the transfer of the property, which the developer requires for its project, including its proposed basketball arena, until the MTA complied with the law.

The petitioners charge, specifically, that the cash-strapped transit authority violated the Public Authorities Accountability Act of 2005. Under that legislation, which former Governor Pataki signed into law in 2006, MTA was required to obtain an independent appraisal of the Vanderbilt Yard and seek out competitive offers for the property. The MTA failed to fulfill either of these legal requirements when its Board approved its new deal with Forest City Ratner on June 24th, 2009.

"We are asking the court to annul the MTA's agreement of this past June to sell the Vanderbilt Rail Yard to Forest City Ratner, because the agreement violated the procedural requirements of the Public Authorities Accountability Act of 2005, which were put in place to ensure that New York State's public authorities, including the MTA, adhere to the highest ethical and professional standards when selling their property. The MTA's deal to sell the Vanderbilt Rail Yard to Forest City Ratner did not meet those standards," said petitioners' attorney Randall Rasey of Barton, Barton & Plotkin.

The lawsuit is funded by Develop Don’t Destroy Brooklyn (DDDB), which is funded entirely by thousands of grassroots donations. DDDB is holding its fifth annual fundraising Walkathon to raise money for the legal fight against Atlantic Yards this Saturday, October 17th, at 2pm kicking off from Brooklyn Borough Hall. For more information and to register for the Walkathon, please visit: http://www.dddb.net/walkathon.

October 12, 2009

The eminent domain battle Wednesday: an easy call for the Court of Appeals or a fresh look at blight, "public purpose," and relative benefits?

Atlantic Yards Report

Norman Oder offers a primer on the looming New York State Court of Appeals hearing on the use of eminent domain for Bruce Ratner's planned Atlantic Yards project, which will be argued Wednesday in Albany.

The case challenging eminent domain (Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation, or ESDC), to be heard Wednesday in the Court of Appeals in Albany may be the only case standing in the way of arena construction, even though other lawsuits challenging Atlantic Yards are expected.

(It should be webcast, beginning at 2 pm, with oral arguments to last about an hour.)

So stakes are high. Should the Court of Appeals rely on a line of cases that have expanded the notion of "public use" to "public purpose," and which have expanded the understanding of blight from clearing slums to removal of "stagnation," it will uphold the dismissal of the case, concluding that the state constitution offers no tighter protections than does the federal one.

Should the court, however, look more expansively and closely at the case, it could raise serious questions. Consider that blight was presented as justification for eminent domain well after Atlantic Yards was announced and the menu of promised public benefits has shifted and arguably diminished, according to evidence that emerged after the project was initially passed in December 2006, a record the ESDC wants very much to exclude.

The court could also avoid both lines of inquiry by ruling more narrowly, saying the case was filed too late and/or presents no new constitutional questions.

October 9, 2009

Advocates to Argue for N.Y. State Recognition of Legal Same-Sex Marriages

New York Law Journal
by Joel Stashenko

New York's highest court, which three years ago ruled that same-sex couples do not have a constitutional right to marry in the state, will get an opportunity to approach the issue from a different angle next week: Whether state and local governments can recognize same-sex marriages solemnized in jurisdictions where such unions are legal.

Two cases challenging the recognition of same-sex marriages will be heard together as the Court of Appeals begins its next session on Tuesday.

The Court also will hear cases next week and the week after challenging the use of eminent domain in one of the largest private developments in recent New York history, the Atlantic Yards project in Brooklyn, and whether New York City can be held liable for injuries suffered by an elementary school teacher hurt when she stepped in to break up a fight between fourth-graders.

Beyond the eminent domain case, other lawsuits looming against ESDC and MTA, but can they have any impact?

Many people believe that the pending eminent domain case, to be heard in the Court of Appeals on October 14 after being rejected at the trial court and appellate court levels, is the only piece of litigation that can stop Atlantic Yards from going forward.

That may be so, and that case has to be considered an uphill battle for the plaintiffs. Both the Empire State Development Corporation (ESDC) and developer Forest City Ratner have expressed confidence about success in the case.

Still, the willingness of the Court of Appeals to accept a case unanimously dismissed at the appellate division suggests that the court recognizes it needs to at least clarify whether the state constitution restricts eminent domain more than does the federal constitution. (On Monday, I'll have a preview of the legal arguments.)

And, if the court upholds the defendants, the ESDC apparently intends to pursue eminent domain even as other cases proceed.

More litigation

Meanwhile, one other appeal is still in play and three other cases should be filed soon, both by Develop Don't Destroy Brooklyn (and allies) and the BrooklynSpeaks coalition. News of the latter's suit surfaced yesterday.

While these lawsuits may not be able to stop the project formally, they might raise sufficient questions to affect the financing of the arena. More likely, they would at least shine some light on the process behind some questionable decisions by the ESDC and the Metropolitan Transportation Authority (MTA).

October 8, 2009

New Atlantic Yards lawsuit to target state

NYPost.com
by Gary Buiso

Community groups will soon file a lawsuit challenging the state’s approval of a modified plan for the Atlantic Yards project, arguing that the Empire State Development Corporation accepted skewed data and failed to meaningfully engage the public during its review of the controversial plan, this paper has learned.

The lawsuit, which has not yet been filed, will argue that Forest City Ratner’s revised project was approved in September without appropriate documentation and data, specifically an alleged under-reporting of traffic impacts. A supplemental environmental impact statement will therefore be warranted, as the project has fundamentally changed in scope, according to Gib Veconi, a member of the Prospect Heights Development Council, one of the plaintiffs in the suit.

Last week Veconi successfully urged the Park Slope Civic Council to agree to be co-plaintiffs on the suit, which is being organized by the umbrella group Brooklyn Speaks. The Manhattan-based Urban Environmental Law Center is expected to represent the plaintiffs.

PSCC President Ken Freeman said his group has been trying to work with the developer to improve the existing project, rather than kill it. “It is with a heavy heart that we are forced to admit that nearly three years later, all our efforts have been in vain. The project has changed significantly for the worse in that time, and our efforts have yielded no concessions.”

August 20, 2009

We should know within a month whether the case challenging the Atlantic Yards environmental review will, like the case challenging eminent domain, get a hearing before the state's highest court, the Court of Appeals.

The Empire State Development Corporation (ESDC) and Forest City Ratner have responded forcefully to the request by Develop Don’t Destroy Brooklyn (DDDB) and 25 co-petitioners, who asked the Court of Appeals to review the case, questioning whether the "bias and corruption" demonstrated by the ESDC renders the agency's blight findings invalid.

The ESDC and FCR say the case is cut and dried, given that courts give agencies much deference. In turn, the petitioners fire back in a final legal memo, charging that the ESDC and the developer mischaracterize their arguments.

The Court of Appeals is not required to accept this case.

If it doesn't, however, that would mean that one crucial element in the ESDC's much-criticized Blight Study, the questionable use of crime statistics, would never have been subject to judicial scrutiny, since the trial court punted on the issue and the Appellate Division ignored it.

Should the case be accepted, a victory for the petitioners would, at the least, require a do-over of the Blight Study. While it might undermine Atlantic Yards as a whole, the eminent domain case represents more of a fundamental challenge to the progress of the project.

Click thru for a detailed analysis of the legal arguments, and  surprise!  the ESDC's and FCR's liberal interpretations of reality.

August 12, 2009

Develop Don't Destroy Brooklyn posted a point-by-point rebuttal of this weekend's loopy rant published by the NY Daily News editorial board. Starting with this lie promoted by developer Forest City Ratner, it goes on, and on:

After losing 25 state and federal court cases against the Atlantic Yards development in Brooklyn, opponents of the project have launched their most insidious and potentially destructive legal battle to date.

There have been five cases overall brought against the Atlantic Yards project or aspects of it. That would make a 25-0 score impossible.

In a request (PDF) for the state’s highest court, the Court of Appeals, to review the case challenging the environmental review for Atlantic Yards, Develop Don’t Destroy Brooklyn (DDDB) and 25 co-petitioners question whether the "bias and corruption" demonstrated by the Empire State Development Corporation (ESDC) renders the agency's findings invalid.

The memorandum of law draws significantly on a concurring opinion by Appellate Division Justice James Catterson, which reads more like a dissent, and also points out omissions in the Appellate Division’s February 2009 dismissal of the case.

That dismissal upheld Supreme Court Justice Joan Madden’s dismissal of the case. Briefs from the defendant ESDC are due this month. The Court of Appeals, which is already considering an appeal in the separate case challenging the use of eminent domain, is not required to accept this case.

Crime stats

The February ruling, for example, neglected to address the claim that the ESDC, in the Blight Study conducted by environmental consultant AKRF, manipulated statistics to contend that the 22-acre project site suffered from more criminal activity than nearby areas. (In my coverage in February, I missed this omission.)

The petitioners note that AKRF responded to public complaints that it had misrepresented crime data in the non-ATURA sectors by simply asserting that it had “accurately described the blighted conditions on the project site.”

Those testifying last week at the Atlantic Yards public hearing were not the only ones who want to learn how the Empire State Development Corporation (ESDC) calculates the costs and benefits from Forest City Ratner's AY plan.

Attorney George Locker, who represents rent-stabilized residents in two buildings in the Atlantic Yards footprint, has hit the wall in his Freedom of Information Law (FOIL) request for documents regarding any ESDC current cost-benefit analysis.

Last month, the ESDC denied Locker's request for such documents, saying they were exempt from disclosure. An agency may deny access to records that are inter-agency or intra-agency materials which are not statistical or factual tabulations or data, or not final agency policy or determinations.

Appeal filed

Locker recently filed an appeal with the ESDC general counsel, arguing that the documents requested are not exempt from production.
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During an informational meeting July 22, ESDC Senior Counsel Steve Matlin asserted that "We’re constantly looking at that analysis and updating that analysis,” a statement belied by the absence of any new numbers in the 2009 Modified General Project Plan.

On the same day that a legal brief was filed with the New York Court of Appeals in preparation for upcoming oral arguments over eminent domain, opponents of Atlantic Yards filed another brief with the same court but in a separate case.

Tuesday, Develop Don’t Destroy Brooklyn (DDDB) announced that it filed a memorandum of law with the Court of Appeals seeking leave to appeal an Appellate Division-First Department judgment that upheld the Manhattan Supreme Court’s dismissal of DDDB v. Urban Development Corp.

The case — filed on Friday by DDDB itself, instead of property owners or renters who live on the proposed site — directly seeks to stop Atlantic Yards based on alleged faults with the environmental impact statement and review.

August 4, 2009

Legal Round-up

The Bergen Record's John Brennan reports on the latest development in the legal challenge to the Atlantic Yards environmental review and blight study.

The Nets’ longstanding effort to move to Brooklyn ran into another potential legal hurdle on Tuesday, as a group opposed to the Atlantic Yards arena and housing project announced it has filed papers seeking to have the “blighted” designation of the area invalidated.

The Develop Don’t Destroy Brooklyn group asked the New York Court of Appeals to review whether a state agency has demonstrated so much “bias and corruption” that its description of the proposed Barclays Center arena site cannot be accepted.

The appeals court — New York’s highest court — agreed in June to consider overturning a ruling allowing eminent domain to be used at the 22-acre site.

“This is a completely different violation of the law,” said Develop Don’t Destroy spokesman Daniel Goldstein, who owns a condominium within the project’s footprint.

Nets officials have indicated that bonds backing most of the $850 million in construction costs of Barclays Center must be sold by the end of the year, with a groundbreaking required within the same time frame.

The Eagle makes the timing sound dramatic, but it was hardly a nail-biter.

Opponents of Atlantic Yards, who are challenging the state’s use of eminent domain, were required to file their legal brief with the New York Court of Appeals by Friday. Otherwise, their year-long case would have been dismissed.

On Friday, just hours before the strict court-imposed deadline, the petitioners filed their appellant brief. The New York Court of Appeals, which is the state’s highest court will hear oral arguments on Oct. 14 at 2 p.m.

Matthew D. Brinckerhoff, the lead attorney for Develop Don’t Destroy Brooklyn (DDDB), has requested 30 minutes for his argument in court. Attorneys for the developer, Forest City Ratner, will likely request the same amount of time when they file their respondents’ brief, which is due Sept. 10. Appellants’ reply brief, if any, is then due Sept. 25.

“The appellants’ brief compellingly outlines, starting in 1683, New York state’s founders’ and courts’ long history of strict constitutional adherence to using eminent domain for a ‘public use,’ such as highways, parks and firehouses, not for a ‘public purpose’ or ‘public benefit,’” wrote DDDB in a press release issued Monday.

Opponents of the Atlantic Yards project have filed a brief in their Court of Appeals eminent-domain challenge. The brief (read it here), filed Friday, asks the court to reject the U.S. Supreme Court’s Kelo v. New London eminent domain decision, arguing that the New York state constitution gives New Yorkers greater protection against the taking of their property than the U.S. Constitution does.

BROOKLYN, NY (August 4, 2009) — Raising substantial questions about bias and corruption in decision-making by the Empire State Development Corporation (ESDC), Develop Don't Destroy Brooklyn, and 25 community group co-petitioners, filed a brief with New York's highest court [PDF]. The co-petitioners are asking the New York State Court of Appeals to hear their appeal on an adverse ruling on their case challenging the ESDC's Environmental Impact Statement and Blight Study for Forest City Ratner's Atlantic Yards development proposal.

A key issue in the case is the ESDC's designation of Ratner's handpicked development site as "blighted." The "blight" determination made by the ESDC in 2006 is required to proceed with a Land Use Improvement Project under which most of the Atlantic Yards development proposal is designated.

Earlier this year, the Appellate Division ruled that the state's "blight" designation had a "rational basis." However, Justice Catterson—one of the four judges on the panel—wrote a concurring opinion which raises substantial questions about that basis, strongly suggesting there was no rational basis, but rather a decision to facilitate Forest City Ratner in its effort to control 22 valuable acres in the heart of Brooklyn.

Catterson wrote:

"Because I believe that the New York Urban Development Corporation Act…is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized,' I write separately. I recognize that long-standing and substantial precedent requires a high level of deference to the Empire State Development Corporation's finding of blight. Reluctantly, therefore I am compelled to accept the majority's conclusion that there is sufficient evidence of "blight" in the record under this standard of review. However, I reject the majority's core reasoning, that a perfunctory ‘blight study' performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.

…ESDC's contention that as 'a matter of law,' ESDC could only look at conditions contemporaneous with the study, which was conducted years after the [project's] announcement, is ludicrous on several levels."
(Emphasis added.)

The petitioners' motion papers focus on the rationality of the ESDC's determination that the project site was "blighted," and that the ESDC improperly designated the Barclays Center Arena as a "civic project" under the Urban Development Corporation Act.

"As Justice Catterson properly noted, ESDC's failure to consider the context of existing economic development trends in Prospect Heights should make the blight determination per se irrational," said lead attorney Jeffrey Baker. "The ESDC's blight determination was clearly pre-determined, and therefore biased, arbitrary and capricious and should be overturned."

Specifically the petitioners have asked the Court of Appeals to address the following five issues:

Whether ESDC's purposeful denial and mischaracterization of the uncontroverted economic conditions and trends in the project area, and its knowing misrepresentations of crime data in the project area, to support its "blight" determination, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its determination that the area is "substandard and insanitary" for purposes of designating the project a "land use improvement project" under the Urban Development Corporation Act (UDCA).

Whether ESDC's purposeful denial and mischaracterization of the uncontroverted economic conditions and development trends in the project area, in order to justify its rejection of project alternatives, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its rejection of project alternatives under State Environmental Quality Review Act (SEQRA).

Whether ESDC was required to consider the economic conditions and development trends in the project area in order to exercise its authority to designate and undertake the project as a "land use improvement project" under the UDCA.

Whether a sports arena leased for one dollar per year to a private, for-profit entity to be operated as a professional sports facility, with trivial civic benefits, may nevertheless be designated a "civic project" under the UDCA.

Whether the standard of review of an agency action under CPLR Article 78 is the same as the standard of review in a taxpayer action under section 51 of the General Municipal Law.

In eminent domain brief, an effort to include recent episodes (MTA, etc.) and a reliance on Catterson's concurrence

Atlantic Yards Report

There are a couple of interesting aspects to the brief filed Friday (and announced yesterday) on behalf of nine renters and property owners challenging eminent domain for Atlantic Yards in the state’s highest court, the Court of Appeals. (Oral argument will be October 14.)

First, while the original case was filed in state court in August 2008--after a federal case filed in 2006 was ultimately rejected--the new brief makes ample citation of recent episodes that bolster the argument that the state is bending over backwards to accommodate developer Forest City Ratner. Whether such information and argument will be admissible is another question.

Also, in describing the action of the condemning authority, the Empire State Development Corporation (ESDC), the brief also makes ample citation of Justice James Catterson’s February 2009 concurrence in the Appellate Division’s decision upholding the ESDC’s environmental review.

Though Catterson felt compelled to concur in the result, his opinion was scathing, with the tone of a dissent. (Develop Don’t Destroy Brooklyn, which has organized and funded both cases, also is asking the Court of Appeals to consider the environmental case, in which it and 25 other groups are petitioners.)

July 10, 2009

While neither side announced it, the first effort by Develop Don't Destroy Brooklyn (DDDB) and 25 co-plaintiffs to appeal the decision in the case challenging the Empire State Development Corporation's (ESDC) environmental review has failed, as the Appellate Division, First Department on June 30 denied leave to appeal in a one-line decision.
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DDDB and fellow plaintiffs can now ask the Court of Appeals directly. The first motion in that appeal is due by the end of July.

It is not certain, however, that even a victory in the case would affect the ESDC's plan to have tax-exempt bonds for the arena or its plan to proceed with emiment domain. Victory might simply require a revision of the environmental impact statement--or it might upend the findings of blight.

The Court Date Is Set for Atlantic Yards in Brooklyn

The state’s highest court has chosen a date to consider the constitutionality of Atlantic Yards. Oral arguments are set for Oct. 14 at 2 p.m.

Regardless of what the New York Court of Appeals decides, the multibillion dollar project will likely be delayed until at least winter, based on this schedule.

After oral arguments on Oct 14, a decision from the court is expected to be issued in November or December, meaning that resolution of the eminent domain issues and transferring of title likely won’t happen until sometime next year, assuming that the court finds the use of eminent domain to be constitutional.

Developer Bruce Ratner, facing financial deadlines, had vowed to break ground on the Barclays Center basketball arena in the fall. That now appears impossible, according to the court’s scheduling of the case.

The state’s highest court agreed June 30 to consider the case, in which Brooklyn residents, led by Daniel Goldstein, and several businesses located within the footprint contend that the use of eminent domain to remove holdouts from the project’s footprint would violate the New York state Constitution.

Atlantic Yards Eminent Domain Appeal Oral Argument Calendared

Develop Don't Destroy Brooklyn

Oral argument in the Court of Appeals for the appeal of the Atlantic Yards eminent domain case Goldstein v. New York State Urban Development Corporation has been scheduled for Wednesday, October 14 at 2:00 p.m.

July 2, 2009

Ratner and Brooklyn: Eminent domain and tax-exempt status

Field of Schemes

New Jersey Nets owner Bruce Ratner's quest to build a vanilla, big-box style arena in Brooklyn just got a bit more complicated, with New York's top court allowing a challenge of his desired use of eminent domain for this project to move forward.
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The clock is ticking on Ratner, as he needs to get all his financial ducks in a row and get a ceremonial shovel in the ground by December 31 to be eligible for tax-exempt status.

With estimated arena costs at $772 million and capital tough to come by as the economy lurches along, not achieving tax-exempt status could torpedo the project. To hold opponents at bay, perhaps he could threaten local opponents with a decision to bring back the quirky architecture of Frank Gehry if they refuse to back down.

July 1, 2009

State’s highest court sees some ‘appeal’ in Yards eminent domain case

The Brooklyn Paper
by Mike McLaughlin

In a twist that could be disastrous for Bruce Ratner, New York’s highest court surprised many and agreed to hear an appeal that the state has illegally used its power of eminent domain to spearhead the embattled $4.9-billion Atlantic Yards project.

Previous eminent domain cases have gone well for Ratner, but even if he wins another court battle — this time in the Court of Appeals — he could still lose hundreds of millions of dollars in possible construction and financing delays stemming from another round of litigation.

To qualify for tax-exempt financing that could save him millions, Ratner must begin construction by Dec. 31 on the Barclays Center, now a $772-million basketball arena no longer designed by Frank Gehry. Also on the line is the British bank’s agreement to pay $400 million to have its name on the Nets’ now-generic future home court, another deal that turns into a pumpkin at the end of this year.

Is Ratner’s goose cooked?

Not another f*cking blog

Miraculously, New York State’s highest court, the Court of Appeals, has accepted an appeal of the Atlantic Yards eminent domain case! This case had been dismissed by a lower court in May of this year. The earliest the appeal would be heard by the court is mid October, and their decision would follow 6 or 8 weeks later, sometime around Thanksgiving. What this means for the developer, Forest City Ratner (FCR), is their goose (aka Atlantic Yards) is that much closer to the oven, and just in time for the holidays!
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So, after the Empire State Development Corporation (ESDC) and the Metropolitan Transportation Authority (MTA) brazenly forked over more of our money to FCR just last week to keep the zombie proposal stumbling forward, the Court of Appeals may end up being the stake through the heart that kills this zombie once and for all.

Atlantic Yards project faces roadblock from New York State Court of Appeals

NY Daily News
by Erin Durkin

More on this week's Atlantic Yards legal news.

The New York State Court of Appeals agreed to hear an appeal by nine plaintiffs who sued to prevent the government from taking their homes and businesses under eminent domain to make way for developer Bruce Ratner's long-delayed Nets arena and 16 residential and commercial towers.

When a lower court ruled in his favor, Ratner told the Daily News it was the "last hurdle" to the project and vowed to break ground in September. The latest court action will likely push that date back.

"You can't start building until you own the land and demolish the buildings," said Daniel Goldstein, whose Pacific St. home sits in the middle of the site of the planned arena. "It's just not possible for that to happen in '09 with this ruling."

June 30, 2009

State’s Top Court Will Hear Appeal Against Atlantic Yards

The New York Times
by Charles V. Bagli

New York’s highest court has agreed to hear a case challenging the state’s use of eminent domain on behalf of the Atlantic Yards project in Brooklyn.

The decision by the top court, the Court of Appeals, to hear arguments in October came as something of a surprise to the project’s developer, Bruce C. Ratner, who had expected a clear path after a lower court rejected the case in a unanimous decision in May.

And not a pleasant surprise, for sure. We wish we could've been there when Bruce got the news.

The Court of Appeals’ involvement, announced on Monday, is the latest hurdle to Mr. Ratner’s plans to build a $772 million basketball arena, the centerpiece of the project. The developer and his bankers intend to sell about $650 million in bonds for the arena in late September.

That $650 million figure is up some 10% from estimates just last week. One wonders, why the increase?

Mr. Ratner must finance the project and begin construction by Dec. 31 to qualify for tax-exempt status, which would save him millions of dollars in borrowing costs. Most analysts say it is unlikely that conventional bonds would sell in the current market.

“I certainly don’t envy anyone who has to raise capital in the current environment,” said Robert White of Real Capital Analytics, a research firm.

HEADLINES: Not-so-frivolous eminent domain lawsuit (late) edition

The Eagle's Ryan Thompson has an excellent wrap-up of today's legal news, and its implications.

The state’s highest court will consider the constitutionality of Atlantic Yards, and regardless of what it decides, the multibillion dollar project will likely be delayed until winter.

Arguments are scheduled for October, and a decision from the court is expected to be issued in November or December, meaning that resolution of the eminent domain issues and transferring of title likely won’t happen until the winter, if not next year.

Developer Bruce Ratner, facing financial deadlines, had vowed to break ground on the Barclays Center basketball arena in the fall. That now appears impossible, according to the court’s scheduling of the case.
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“We are gratified that the state’s high court will hear this important case about whether our state’s constitution protects the homes of its citizens from the wrecking ball of greed wielded by influential developers and the public officials who do their bidding,” [plaintiffs' attorney Matthew] Brinckerhoff said. “This case provides an opportunity for the New York Court of Appeals to continue its proud tradition of interpreting this state’s constitution in a manner that affords more protection to individual rights and liberties. We look forward to the argument in October."

In a stunning move, the state's highest court has agreed to hear a legal challenge over the use of eminent domain to seize private land for Brooklyn's controversial Atlantic Yards project.
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"It is a great day for New Yorkers concerned about abuses of power," Develop Don't Destroy Brooklyn spokesman Daniel Goldstein said. "We will vigorously continue to defend our rights. But New York State and Mr. Ratner have a choice: they could avoid our legal challenge by finally taking eminent domain off the table."

By agreeing to hear the case, plaintiffs say, the court has already decided there's a constitutional issue worth settling. They also contend that the appeal will put Ratner dangerously close to a December 31st IRS deadline for issuing tax-exempt bonds. If it takes longer than that to sort out legal questions, Ratner would have to resort to conventional bonds, which would cost hundreds of millions of dollars more in interest payments. Last year, the court of appeals did decide all of its October cases by December 2nd. If that schedule holds this year, and Ratner wins the appeal, a late December groundbreaking for the basketball arena is still possible.

HEADLINES: Not-so-frivolous eminent domain lawsuit edition

New York’s highest court has agreed to hear an eminent domain case over the Atlantic Yards project proposed for Brooklyn, a move that infuses new uncertainty into the planned $4.9 billion development that entails a new Nets basketball arena and 6,400 apartments.

The decision by the Court of Appeals was not expected by the project’s developer—Bruce Ratner and his Forest City Ratner—at least based on its public statements and actions. After a year and a half of stagnation, the development seemed to gain new momentum in recent weeks after an appellate court ruled against opponents. Mr. Ratner had been pushing for new public approvals and renegotiated deals with the stated intent of breaking ground on the arena this fall.

Mr. Ratner already confronts a tight schedule in securing $530 million in tax-free financing for the arena. Based on a Dec. 31 I.R.S. deadline for the financing, the cost of the arena would jump by tens of millions of dollars without a tax exemption, and the task of securing financing would grow substantially harder (the broader real estate financing market is more inclement than the tax-free bond market). Thus the viability of the project seems to depend in large part on how fast the court can turn around a ruling.

NoLandGrab: The ESDC and MTA giveth, and the Court of Appeals taketh away.

The New York Court of Appeals (the state's highest court) agreed today to hear arguments in the case of Goldstein v. New York State Urban Development Corporation, which deals with the controversial use of eminent domain on behalf of developer and New Jersey Nets owner Bruce Ratner. As I discussed in an article last week, Ratner is the real estate powerbroker behind the Atlantic Yards redevelopment project in Brooklyn, a massive boondoggle centered on a new basketball arena for the Bruce Ratner-owned Nets.

Things are certainly heating up now. Last Monday, the Metropolitan Transit Authority (MTA), which controls a crucial 8-acre rail yard at the center of the Atlantic Yards footprint, offered Ratner a massively discounted new offer, whereby he would pay just $20 million up front for the land, then pay another $80 million over the next 22 years. Three years ago, however, the MTA wanted the full $100 million up front (and that's for 8-acres that have been appraised at over $200 million). Bear in mind that the MTA just raised subway and bus fares, yet somehow still has the cash to bail out Ratner and his lousy corporate welfare arena. So much for acting responsibly during an economic recession! As for Ratner, he still needs to raise over $500 million and break ground before the end of the year in order to qualify for tax-exempt status. So it's wonderful news that he'll be tied up in court trying to explain away eminent domain abuse while the clock keeps ticking away.

The developer has vowed to break ground this fall, but the latest court action could throw a wrench in those plans.

When a lower court threw out the eminent domain case in May, Ratner told the News: "This is really the last hurdle that we have and now we can do what our company does best and build an arena and houses."

NLG: Actually, Forest City did what it does best last week  secure more handouts of public money courtesy of the MTA and ESDC.

The suit was filed by nine property owners and tenants, including DDDB spokesman Daniel Goldstein, whose corner of Prospect Heights was deemed “blighted” and whose homes and businesses in the proposed Atlantic Yards footprint have been slated for government seizure.

We recently wrote above how opponent’s best hope of stopping Bruce Ratner’s Atlantic Yards Project was not the departure of Frank Gehry but lawsuits. There was a good possibility the “sweetheart” deals the state had crafted to make Ratner’s project easier to move forward could have triggered further litigation, but it seems it may not even come to that, as the Court of Appeals, the state’s highest court, has decided to hear Develop Don’t Destroy Brooklyn’s challenge to the state’s use of eminent domain.

New York’s highest court will hear a critics’ appeal against the Empire State Development Corp., further tightening the schedule for Barclays Center and possibly jeopardizing it. The court asked for briefs by July 31, with a hearing in mid-October. The ESDC, Ratner’s partner in the arena project, had asked the court for a hearing in September so Ratner could meet a Dec. 31 deadline for tax emempt bonds.

Despite claims May 15 by Forest City Ratner CEO Bruce Ratner that the unanimous dismissal of the state eminent domain case in May "is really the last hurdle," the state's highest court, the Court of Appeals, has accepted (PDF) an appeal in the case and won't hear oral arguments until the middle of October.

While eminent domain law still tilts significantly to the advantage of the condemnor, in this case the Empire State Development Corporation (ESDC), the court's willingness to hear it indicates that it believes the originating court, the Appellate Division, did not address some aspect of the legal argument.

Also, as Develop Don't Destroy Brooklyn (DDDB) noted, last year half of all civil appeals were affirmed, and the other half were either reversed (about 40%) or modified (about 10%).

The case is brought by nine residential and commercial tenants and property owners in the AY footprint, and is organized and significantly funded by DDDB.

Delays in groundbreaking, arena bonds

At the very least, the appeal delays Forest City Ratner's announced plans to begin construction by October and severely narrows--but does not close--the window of opportunity to have crucial tax-exempt bonds issued by the end of the year.

NoLandGrab: The New York State Court of Appeals has just blasted a very large hole in any and all claims that legal challenges to the use of eminent domain for the Atlantic Yards project have been "frivolous."

Attorney George Locker, who represents a group of Atlantic Yards footprint rental tenants who are fighting condemnation, added this comment to Norman Oder's post:

The appeal halts all moves by ESDC to proceed with relocation and the EDPL Article 4 vesting proceeding. The project has just ground to a halt. There certainly will be no groundbreaking in 2009, and probably no groundbreaking ever. Or maybe the basketball coach sees it differently.

June 16, 2009

Every case is different, and lawyers for Develop Don't Destroy Brooklyn think they have a strong argument for appealing the unanimous rejection of the Atlantic Yards eminent domain case to the Court of Appeals, the state's highest court.

But the New York Law Journal suggests that chances are low...

That means if the case does gets accepted, the delay could throw a monkey wrench into plans to have tax-exempt bonds issued by the end of the year.

Then again, I've been told, there are ways to have bonds issued but to put a hold on the process, thus raising costs for the borrower somewhat but not removing the substantial advantage--at least $150 million on the arena--such tax-exempt bonds would offer.

June 15, 2009

Late last Friday the nine owners and tenants challenging New York State's effort to seize their properities by eminent domain for Bruce Ratner's Atlantic Yards development plan, filed their Notice of Appeal to the Court of Appeals on Constitutional Grounds.

Though, the "Notice of Appeal states that 'this appeal is taken as of right... because the judgment directly involves the construction of the New York Constitution and presents multiple substantial constitutional questions,'" Norman Oder points out that the Court of Appeals may not agree and refuse to hear the case, though attorneys for Develop Don't Destroy Brooklyn are optimistic that the court will.

The constitutional questions include:

1) whether the public use requirement in the state Constitution "imposes a more stringent standard for takings" than does the federal Constitution, a question not yet considered by any state court

2) whether the state Constitution's public use requirement can be satisfied when the condemning authority does not examine whether the public benefit "is not incidental or pretextual in comparison with benefits to particular, favored private entities" (a phrase from a separate 2009 case)

3) whether the project violates a clause of the state Constitution which requires that subsidies for reconstruction of blighted areas must be restricted to "persons of low income"

June 9, 2009

AYR twofer

On one hand, Atlantic Yards developer Forest City Ratner is trying renegotiate a deal with the Metropolitan Transportation Authority (MTA), hoping to only cough up $20 million up front for the arena portion of the railyard, instead of the entire $100 million. On the other hand, the parent company wants investors to know that the company is on better financial footing.

NoLandGrab: So can't the company afford the $100 million, or is this another bait and switch?

Yesterday, attorney George Locker tried unsuccesfully to get a judge to add a recent statement from an Empire State Development Corporation executive to the record in hopes of reopening a case from last year:

Was it only in April, when ESDC CEO Marisa Lago publicly predicted [Atlantic Yards] would take "decades"? Or was it earlier?

That distinction was at the heart of a 20-minute argument in state Supreme Court yesterday, during which attorney George Locker, who represents eight rent-stabilized tenants in two buildings within the Atlantic Yards footprint, [updated/corrected 7:20 am] unsuccessfully tried to vacate the decision that rejected his request that the ESDC hold a new hearing to re-approve the project.
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After the hearing, however, Locker was nonplused. Given that the ESDC is expected to issue a revision of GPP on June 24, a new public hearing would in fact be held, thus mooting his appeal.

May 20, 2009

Atlantic Yards Will Face More Lawsuits; Will It Face Eternal Delays?

Legal reporter Ryan Thompson maps out the opponents' options and strategies, in the wake of a loss in the latest stage in the eminent domain legal battle.

Below are some excerpts, but, for those of you who are following this fight closely, the entire article is well worth reading:

EMINENT DOMAIN APPEALS

[Daniel] Goldstein, the lead plaintiff in the case, Goldstein et al. v. Empire State Development Corporation, says the case will now go to the Court of Appeals in Albany, the state’s highest court. DDDB lead attorney Matthew Brinckerhoff agrees, believing that the constitutional issues are significant enough so that the Court of Appeals must accept the appeal.
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If the Court of Appeals, which is comprised of seven judges, including Brooklyn-born Theodore T. Jones, rejects the appeal because they don’t think the constitutional questions are significant enough, Goldstein and his co-petitioners have two more bites at the proverbial apple.

The petitioners can make a Motion for Leave to Appeal to the Appellate Division, so that they can appeal to the Court of Appeals. If that is denied, the petitioners can make the same motion to the Court of Appeals itself.

If all three of these attempts to appeal are denied, then this final eminent domain case is over. If the appeal gets to the Court of Appeals, where it will likely stay for some time, and the Court of Appeals then rejects the appeal, then the case is over just the same.

OPPOSING THE ACTUAL TAKING OF THE PROPERTY

After all the challenges to eminent domain have been exhausted, the state will then file an Article 4 proceeding in Brooklyn Supreme Court to get title to land. DDDB will oppose this.

DDDB will claim that they can’t rightly take the land at Atlantic Yards, because Ratner doesn’t have the necessary bonds and financing in place to make the project a reality.

ANOTHER ENVIRONMENTAL SUIT

But before title is transferred, DDDB will challenge the environmental review and approval of the project, based on the fact that the initial review and approval are insufficient since the original planned project has been modified so substantially over the years.

MORE SUITS POSSIBLE

Carponter cited some examples of possible upcoming lawsuits that would seek to stop Atlantic Yards. Carponter said that they could file a taxpayer lawsuit in federal court claiming the IRS made an illegitimate exception specifically for Ratner’s development; or perhaps a lawsuit that challenges the financing of the project.
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She acknowledged that the lawsuits would not have the effect of stopping construction of Atlantic Yards unless a stay or an injunction ordering such was issued as part of the new lawsuits. Seeking such injunctive relief would be one of the primary goals.

When it came to the railyard work stall in December, the ESDC was more enabler than evaluator

Atlantic Yards Report

Norman Oder continues to place evidence on the table that Forest City Ratner, not the Empire State Developerment Corporation, is not only calling the shots, but is giving out the marching orders:

[W]hen work stalled in December at the Vanderbilt Yard, the developer blamed lawsuits, and the ESDC endorsed that explanation.

"The latest I have is that they’ve done all the preliminary work they can complete until the lawsuits are taken care of," ESDC spokesman Warner Johnston told me. "The work will resume when litigation is resolved." His source: "our people who work with FCR."
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However, that ignored sworn affidavits by Forest City Ratner officials that the construction schedule was “carefully drawn to allow the arena to be ready for the 2009-10 season by commencing work now on vacant properties that are owned by FCRC, the MTA and the City, with work on properties that are owned or occupied by other parties deferred until the pending judicial challenges to the Project have proceeded....”

NoLandGrab: What the ESDC spokesperson was not instructed to say was that FCR might be running into a cash-flow problem and had to suspend work while the company was "proactively managing debt maturities."

May 17, 2009

It Came From the Blogosphere...

After a state appellate court rejected a lawsuit stopping his Atlantic Yards project, developer Bruce Ratner says that ground will be broken sometime this year (maybe this summer, maybe this fall). He told the NY Times, "I’m honestly overjoyed. This is a weight off my back." A group of property owners in the footprint of the massive project had claimed eminent domain was improperly used to obtain land; the appellate court unanimously rejected the challenge, finding, "It cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project’s private developer." Still, the opponents, who believe Ratner will profit much more than the public will benefit (and who have helped stall the plans for two years), vow to take their case to the Court of Appeals. The Daily News notes, "The decision allows Ratner to qualify for tax-free bonds to build the arena and the go-ahead to purchase the MTA-owned rail yard on which it will be built."

The long Atlantic Yards saga continued this week, and while it may seem that the Appellate Court ruling is just another step in the process, it isn’t. It is by far the most significant court victory Bruce Ratner and the Empire State Development Corp. have achieved.

It opens the way for the ESDC to close the deal with Ratner and begin the eminent domain proceedings, condemning the property that Ratner doesn’t control in the arena “footprint”. How quickly is the issue. The corporation could very well move soon and let the critics try to stop them.

There is still one other legal challenge out there, but it’s even less likely to win favor at the appellate Courts. Moreover, Ratner’s people told the Post that they believe property condemnation–and construction–can proceed while that case continues. The critics disagree. Of course, critics can file more lawsuits, but that doesn’t necessarily mean a court would put a hold on eminent domain while those cases wind it way through the legal process. There’s also another issue. Develop Don’t Destroy Brooklyn, the project’s most aggressive opponent, is not exactly flush with cash and each loss hurts its fund-raising efforts. It put out a call for donations immediately after the Appellate Court ruling.

...

Of course, the next big step in the arena process is raising the $500 million needed to built it, part of which will have to come from the pockets of the Nets’ ownership group, and part from lenders, perhaps even other investors. Goldman Sachs and Barclays Bank are the lead investment bankers and Net officials say they are confident they can raise the money needed, even in this economic environment.

The Nets, really? In May? Yup…because THE NETS ARE ACTUALLY GOING TO BROOKLN!

No seriously, just check this out from the AP:

Developer Bruce Ratner says he is ready to break ground on a Brooklyn arena for the New Jersey Nets this year after an appeals court struck down a challenge to his Atlantic Yards project.

Ratner says he plans to begin building the $800 million arena this year after issuing bonds to finance the project this fall.

The state Supreme Court’s appellate division on Friday struck down an opponents’ lawsuit that sought to stop the state from using eminent domain to seize property where the 22-acre Atlantic Yards project is slated to be built.

I guess this means the Nets will be the hot new attraction in the NBA and a new player in the LeBron James sweepstakes.

Futher Coverage of Eminent Domain Ruling

Since the ruling by a New York state appellate court in favor of the Empire State Development Corporation was announced on a Friday, additional press coverage appeared over Saturday. The tone of the coverage ranged from total acceptance of Bruce Ratner's prediction to build to this year to a possibility that could happen.

Developer Bruce Ratner says he is ready to break ground on a Brooklyn arena for the New Jersey Nets this year after an appeals court struck down a challenge to his Atlantic Yards project.

Ratner says he plans to begin building the $800 million arena this year after issuing bonds to finance the project this fall.

The state Supreme Court’s appellate division on Friday struck down an opponents’ lawsuit that sought to stop the state from using eminent domain to seize property where the 22-acre Atlantic Yards project is slated to be built.

The opponents say they will appeal.The $4 billion project includes an office tower and more than 15 apartment buildings.

Opposition lawsuits and financing difficulties have delayed the project for years.

The future home of the New Jersey Nets is set for construction after an appeals court ruled the Brooklyn arena could break ground following the dismissal of a challenge by opponents.

The Atlantic Yards project, to be developed by Bruce Ratner, has been delayed for several years as lawsuits have been filed to block the $4 billion venture that would include 15 apartment buildings and an office tower in addition to the arena.

Ratner plans to begin construction on the $800 million Brooklyn arena later this year. Opponents had filed a lawsuit that challenged the state’s use of eminent domain to seize property for the 22-acre Atlantic Yards project.

The New Jersey Nets may have moved a step closer to breaking ground on a new basketball arena in Brooklyn, thanks to a judicial decision made last week.

The Appellate Division of New York's State Supreme Court, Second Judicial Department, unanimously rejected an opponent's lawsuit that challenged the state's use of eminent domain to seize property for the arena.

According to a New York Times report, the 20,000-seat arena that the Nets would use is a part of a 22-acre development project, which includes apartments and an office tower, called Atlantic Yards. The project is headed by developer Bruce Ratner, the Nets' principal owner.

The decision, which was made Tuesday and announced Friday, said "the condemnation does not violate the Public Use clause of the New York Constitution because it cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project's private developer."

Opponents have delayed the proposed plan in the last several years, arguing that taking the property violated the Public Use clause of the Fifth Amendment to the U.S. Constitution. They asserted that the public uses of the development were pretexts for Ratner's private benefit.

The Times' report said Ratner, planned to break ground on the $800 million arena by October, and that he was "overjoyed." However, it also quoted an opponent as saying the legal battle was not over.

Developer Bruce Ratner's plans to bring the New Jersey Nets to Brooklyn is a step closer to reality after a state appeals court dismissed a major challenge to his long-delayed Atlantic Yards project on Friday.

Ratner, the CEO of Forest City Ratner Companies, said he hopes to break ground on the $800-million dollar Barclay Center by October. The planned 20,000-seat arena would be the first part of a 22-acre development at the intersection of Flatbush and Atlantic Avenues. Along with the arena, the $4-billion project will include an office tower and more than 6,000 apartments with as many as 2,250 for low and middle-income families. Ratner said he hoped to build the first residential building six to nine months after starting the arena.

In a unanimous decision, the state Supreme Court's appellate division upheld a lower-court ruling that rejected a challenge to the state's use of eminent domain to obtain properties. "It cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project's private developer," the ruling said.

The opposition, which has yet to win a lawsuit but has delayed the project for over two years, vowed to continue to fight and expressed doubt over whether Ratner would get the financing he needs in such uncertain economic times. Ratner, the CEO of Forest City Ratner Companies, said he hopes to raise the funds for the project by issuing bonds.

May 16, 2009

B'klyn Arena Victor Ratner: We're Ready To Dig

New York Post
By Rich Calder

This article likes to take all of Bruce Ratner's claims at face value. The Nets playing in Brooklyn by 2011-12? Don't hold your breath. Also repeated are promises for affordable housing and jobs which would appear in the distant future, if ever.

After scoring a huge court victory yesterday, developer Bruce Ratner says he'll break ground on Brooklyn's embattled Atlantic Yards project this September -- and may even have the Nets playing there by the 2011-12 season.

An appellate panel in Manhattan unanimously ruled to give the state the green light to seize private property on Ratner's behalf, so construction can begin on a $4 billion project in Prospect Heights that's been heavily delayed by mounting litigation since getting state approval in Dec. 2006.

The four-member panel determined the project has enough "public benefits" -- such as the creation of 2,250 affordable housing units and thousands of jobs -- to warrant condemning land. Opponents, however, say the 22-acre project footprint isn't "blighted" as Ratner and the state contend, so using eminent domain would be unconstitutional.

Ruling could put Ratner's Atlantic Yards project back on track

Bruce Ratner says he has cleared the "last hurdle", although, with an appeal promised, another appeal pending and an economy that will make financing an arena difficult, he hasn't.

Developer Bruce Ratner scored a major victory Friday in his plan to build a Nets basketball arena in Brooklyn.

Ratner vowed to break ground this summer on the massive Atlantic Yards development, which also includes residential towers.

"We're very, very happy," Ratner told the Daily News Friday, hours after the court victory. "This is really the last hurdle that we have and now we can do what our company does best and build an arena and houses."

A panel of four New York appellate judges ruled that Forest City Ratner's use of eminent domain to take private property to build a new home for the Nets does not violate the state Constitution.

State officials believe the ruling, one of more than a dozen favoring Forest City Ratner since 2005, removes the final obstacle to construction.

Foes of the project said they would appeal - possibly delaying the project from several months to three years.

Appeals Court Dismisses Suit Against Atlantic Yards

The NY Times
By Charles V. Bagli

An hour after learning that a state appeals court had dismissed a major challenge to his long-delayed Atlantic Yards development project, the developer Bruce C. Ratner said he planned to break ground by October on an $800 million basketball arena for the New Jersey Nets in Brooklyn.

The 20,000-seat arena is only one piece of a proposed 22-acre development at the intersection of Flatbush and Atlantic Avenues that would include an office tower and more than 6,000 apartments, including as many as 2,250 for low- and middle-income families.

Given the anemic economy, the housing and the commercial building may have to wait for some time. But Mr. Ratner said he planned to complete the design for the arena, obtain final government approvals and issue the bonds for the project by fall.

...

Opponents of Atlantic Yards vowed to continue their fight and expressed skepticism that Mr. Ratner would get the financing at a time when lenders are refusing to invest in real estate projects. The opposition has yet to win a lawsuit, but it has delayed the project for more than two years.

In its unanimous decision, the Appellate Division of State Supreme Court, Second Judicial Department, upheld a lower court ruling rejecting a challenge to the state’s use of eminent domain to obtain properties for the developer from owners unwilling to sell. “It cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project’s private developer,” the ruling said.

Candace Carponter, the legal director for one of the opponents, Develop Don’t Destroy Brooklyn, expressed disappointment but not defeat. “The benefits the original project allegedly offered were negligible, at best, and with the changed economy they are now nonexistent,” she said in a statement. “Despite this setback, our fight against the improper use of eminent domain and against the Atlantic Yards project is far from over. Forest City Ratner may claim again, like the boy who cried wolf, that they will break ground soon. But they won’t.”

It Came From the Blogosphere...

Unfortunately, Goldstein et al. v. Empire State Development Corporation (ESDC) was dismissed by a state appellate court in an unanimous opinion. Norman Oder (producer of the always comprehensive Atlantic Yards Report) breaks it down here.

Although this setback wasn’t surprising or unexpected, it’s still disappointing.

This dismissal doesn’t mean that shovels will be in the ground any time soon near what might be center court. The almost certain appeal of this decision, in addition to the upcoming State Senate public hearing, not to mention the not-so-small problem of actually finding the money to build a $4 billion development in this climate, among other hurdles, will keep things pretty quiet here in the footprint for the foreseeable near future.

At a time when many local politicians and citizens would likely describe Bruce Ratner's Atlantic Yards project as the biggest real estate boondoggle in NYC development history, a New York State Appellate Division (Second Department) panel of 4 judges ruled against nine Brooklyn homeowners, business owners and tenants who had filed a lawsuit to stop New York State from seizing their homes and businesses by eminent domain to benefit developer Bruce Ratner for his indeterminate and uncertain development proposal known as Atlantic Yards in Prospect Heights, Brooklyn. (The ruling in Goldstein et al. v. Empire State Development Corporation is here.)

Court Rules Against Tenants, Owners in Eminent Domain Case. Plaintiffs Will Go To Court of Appeals

To all of DDDB's supporters. Please help continue to financially support the legal defense of the homes and businesses of your neighbors, as they challenge the use of eminent domain for Atlantic Yards in the appeal stage.

Goldstein et al v. New York State Urban Development Corporation in the news

Developer Bruce Ratner has won another victory in his undying attempt to bring the Nets to Brooklyn as part of the $4 billion mixed-use project, Atlantic Yards. In a decision posted online on Friday, landowners and tenants were rebuffed by the state appellate court in a case that contested the use of eminent domain for the project (the case was against New York State, not Mr. Ratner himself).
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Of course, at this point a court victory for Mr. Ratner’s Forest City Ratner is nothing surprising, as it has defeated numerous legal challenges contested in both federal and state court, which have been appealed repeatedly. But more than anything else, the decision amplifies the ticking clock for critics and opponents, as Forest City needs to complete the deal with the state for the project by the end of the year in order to qualify for tax-exempt financing on the Nets arena (without the tax-free financing, its cost would rise substantially, further placing into doubt the project's viability).

Atlantic Yards developer Bruce Ratner won an important court victory against nine property owners inside the project’s footprint who had argued that the state Constitution bars the use of eminent domain for any development that includes luxury housing.

Ratner reveled in today’s unanimous decision by the Appellate Division of the Supreme Court, saying it would allow construction on the long-awaited basketball arena to begin later this year.

NoLandGrab: Bruce's bosses out in Cleveland earlier this week announced they don't "anticipate commencing any new vertical development in the near term," and we don't think they expected to lose this court decision.

In the decision, the court ruled that the developer’s private benefit from the construction of Atlantic Yards does not outweigh the overall public benefit. Forest City said it is the 23rd ruling in its favor regarding the massive project which includes the Nets sports arena and residential buildings.

NLG: Notice they're no longer using the word "consecutive" after "23rd," given the setback the Appellate Division dealt them earlier this week in a suit over Henry Weinstein's Prospect Heights property.

“We’re thrilled with today’s decision,” said Forest City Chief Executive Bruce Ratner, in a statement, adding that he is confident that the $4 billion project would break ground this year. “This significant victory keeps Atlantic Yards moving forward. We are ready to get started.”

NLG: Oh, are they, now.

According to Mr. Ratner the arena and larger development are expected to create 16,924 direct jobs and over 30,000 indirect jobs. The tax revenues that will be generated for the City and State during the construction period are expected to exceed $240 million and after construction reach approximately $70 million a year.

Eminent domain case is dismissed unanimously; appeal in this and EIS case remain as last legal hurdles

Atlantic Yards Report

Norman Oder analyzes today's Atlantic Yards court decision.

The Atlantic Yards eminent domain case was always a long shot in state court (even more so than in federal court), and today a state appellate court dismissed Goldstein et al. v. Empire State Development Corporation (ESDC) in an unanimous opinion.

In New York State, an appellate court, rather than a trial court, hears eminent domain cases, and no testimony or cross-examination is allowed.

The straightforward language of the 16-page decision, which gave no quarter to the petitioners' claims, contrasted with the appellate decision in the case challenging the Atlantic Yards environmental impact statement (EIS), which took pains to express some skepticism about the project and featured a concurrence that sounded like a dissent.

Appeal issue

Eminent domain law in New York State gives unusual deference to the government condemnor. A major issue raised in legal briefs and the February oral argument is whether the defendant ESDC conducted a study to measure the relative benefit to developer Forest City Ratner.

In legal papers, the ESDC claimed it had done so, though it cited a document that didn't perform such a measure. In court, the ESDC lawyer said it wasn't necessary, and the court agreed.

Plaintiffs’ attorney Matthew Brinckerhoff said today, “The court’s logic is faulty. The private benefit to Ratner was never compared with the alleged public benefit because no one knew or cared to ask Ratner whether he would make billions, tens of billions or hundreds of billions. The ESDC has conceded that it had no idea how much money will be made by Ratner when it agreed to seize my clients’ homes and businesses on his behalf."
...

The nine petitioners, organized and funded by Develop Don't Destroy Brooklyn, will appeal to the state's highest court, the Court of Appeals, and say that they have the right to appeal without asking permission.

Update: Brinckerhoff said that the state Constitution and the Civil Practice Law and Rules allow the right to appeal when a case raises a constitutional question. That's been interpreted to mean a "substantial contitutional question." He said "we have multiple substantial constitutional questions, which gives us the right to appeal." However, he acknowledged, if the Court of Appeals disagrees, it could reject the appeal and require the petitioners to ask the Appellate Division to file a motion for leave, which would be discretionary. "I have a high degree of optimism [that the Court of Appeals would hear it], but I can't guarantee it," he said.

Such an initial request for leave to appeal is still pending in the case challenging the EIS. It could take several months--likely until the fall, given the courts' summer recess--for final appeals to be denied, and it would take much longer should the appeals be accepted. If the latter, there could be two more years of delay.

Plaintiffs Will Ask the Court of Appeals to Stop New York State From Seizing Their Properties to Enrich Bruce Ratner

BROOKLYN, NY— A New York State Appellate Division* (Second Department) panel of 4 judges ruled against nine Brooklyn homeowners, business owners and tenants who had filed a lawsuit to stop New York State from seizing their homes and businesses by eminent domain to benefit developer Bruce Ratner for his indeterminate and uncertain development proposal known as Atlantic Yards in Prospect Heights, Brooklyn. (The ruling in Goldstein et al. v. Empire State Development Corporation is here.)

The plaintiffs will appeal the ruling to the Court of Appeals.

In the decision, the court wrote: “We find that, on the record in this case, the condemnation does not violate the Public Use clause of the New York Constitution because it cannot be said that the public benefits which the Atlantic Yards project is expected to yield are incidental or pretextual in comparison to the benefit that will be bestowed upon the project’s private developer.”

“The court’s logic is faulty. The private benefit to Ratner was never compared with the alleged public benefit because no one knew or cared to ask Ratner whether he would make billions, tens of billions or hundreds of billions. The ESDC has conceded that it had no idea how much money will be made by Ratner when it agreed to seize my clients’ homes and businesses on his behalf. There is ample evidence that the public benefits are minor compared to the enormous benefits for Ratner,” said plaintiffs’ attorney Matthew Brinckerhoff. “We have the right to appeal directly to the State’s highest court, the Court of Appeals, which we will do, so that Court can determine that the New York Constitution’s Public Use Clause provides greater protection to its citizens than the federal constitution.”

Developer Forest City Ratner (FCR) cannot build its beleaguered, $4 billion Atlantic Yards development proposal, including the billion-dollar Barclays Center arena, unless New York State seizes the plaintiffs’ properties on behalf of Bruce Ratner and it secures financing. FCR has been unable to attain the financing for the project or pay for the rail yard portion of the project site. The developer does not own or control** the land the needs to build the project, including the arena. The project has not started construction, and the developer halted all preliminary work in December 2008. Two days ago Cleveland-based parent company Forest City Enterprises stated that the developer will not start any new vertical development “in the near term.”

“We’re disappointed in the ruling, but are optimistic that the Court of Appeals will see the importance of setting clear boundaries between constitutional and unconstitutional uses of eminent domain in New York State. The benefits the original project allegedly offered were negligible, at best, and with the changed economy they are now non-existent. Despite this setback, our fight against the improper use of eminent domain and against the Atlantic Yards project is far from over,” said Develop Don’t Destroy Brooklyn legal director Candace Carponter. “Forest City Ratner may claim again, like the boy who cried wolf, that they will break ground soon. But they won’t; they are unable to do so.”

The initial complaint to the Court, all the briefs, and today’s ruling for Goldstein et al. v. Empire State Development Corporation can be downloaded at: www.dddb.net/eminentdomain.

* Note: The ruling today is on the initial case, not an appeal. The ruling comes from the Appellate Division because New York State law requires that all eminent domain challenges must be initiated in the Appellate Court, rather than the lower court—the Supreme Court.

**Note: Just last week FCR lost control of an additional 1+ acres of property in the project site, when they lost a case to property owner, and plaintiff on this eminent domain case, Henry Weinstein. Within the proposed 22-acre project site, Ratner only owns or controls about 6-7 acres.

Note: Develop Don't Destroy Brooklyn, in its effort to defend the homes and businesses of members of our community, and to advocate for their rights, organized the eminent domain lawsuit, and raises the funds to support it.

RELATED NEWS: In two weeks the New York State Senate will probe the Atlantic Yards project. Forest City Ratner and the Empire State Development Corporation (the State agency overseeing the project) will be testifying in the first State Senate public hearing on the Atlantic Yards project scheduled for May 29th in Brooklyn. More details here.

We just got word that the Appellate Division, 2nd Department has dismissed the New York State court challenge to the use of eminent domain for the Atlantic Yards project, Goldstein v. New York State Urban Development Corporation.

May 14, 2009

Henry Weinstein, who owns 2 large properties in the footprint of the proposed Atlantic Yards project and is a plaintiff on the lawsuit organized by DDDB challenging NY State's right to seize properties by eminent domain for Forest City Ratner's project, also had filed two lawsuits against Forest City and developer Shaya Boymelgreen.

Weinstein had won those two suits and last week he won the appeals brought by Forest City and Boymelgreen. Boymelgreen's Newswalk property, was suspiciously cut out of the Atlantic Yards land grabbing footprint.

According to Mr. Brody, his client had no knowledge that Mr. Boymelgreen had assigned the lease to 752 Pacific Ave. and 535 Carlton Ave. to Forest City until Mr. Weinstein stumbled upon public records about three years ago. In 1999, Mr. Boymelgreen signed a 49-year lease with Mr. Weinstein on the property. In the meantime, Forest City has been falsely claiming in its dealings with the state to build Atlantic Yards that these two properties were under the company’s control, added Mr. Brody.

No surprises here:

False claims by Forest City Ratner accepted without question by the state of New York (ESDC)? That's just par for the course.

May 13, 2009

Atlantic Yards project faces fresh hurdle

Appeals court rulings could complicate life for developer Forest City Ratner

Crain's NY Business
by Amanda Fung

Two New York state appeals court rulings could put a wrench in Forest City Ratner Cos.’s plans to build its sprawling Atlantic Yards project in Brooklyn.

The recent rulings give Henry Weinstein, a developer who owns almost an acre within the proposed Atlantic Yards footprint, the right to evict the property’s tenant, Brooklyn developer Jeshayahu Boymelgreen and Forest City.

Forest City was given an illegal assignment to Mr. Weinstein’s properties according to last week’s rulings. The court also said Mr. Weinstein can sue the entities involved in the case for monetary damages. The unanimous decisions reverse a March 2007 decision made by Brooklyn Supreme Court Justice Ira Harkavy, which allowed Mr. Boymelgreen to remain an occupant despite termination of the lease.

The decisions were reached last week and announced Wednesday by Mr. Weinstein’s law firm Borah Goldstein Altschuler Nahins & Goidel. The law firm of Herrick Feinstein, which represents Mr. Boymelgreen, did not return a call for comment. A spokesman for Forest City said these rulings will not have an impact on the proposed project.

“We are now pushing for an eviction,” said David Brody, a senior partner at Borah Goldstein Altschuler Nahins & Goidel, adding the next step will involve asking for a hearing to determine the difference between the present-day value of the property and its value when the lease was terminated in July 2006, so Mr. Weinstein can recoup that money. The value is unknown, however. According to preliminary calculations in the lease, Mr. Weinstein’s damages exceed $25 million, the law firm said.

NoLandGrab: $25 million seems like a stretch, but hey, we could say the same thing about trying to sell $800 million worth of tax-free bonds to finance an arena in Brooklyn when a perfectly fine arena is available in Newark.

May 12, 2009

Appellate Division Agrees, One Ratner Lease Is Void

Brooklyn Daily Eagle
By Ryan Thompson

The Appellate Division, Second Department in Brooklyn Heights upheld a Kings County Supreme Court judge who ruled that a tenant’s lease assignment was improperly made to Forest City Ratner and therefore void.
...
A Ratner spokesperson said that the ruling... will likely not cause any further delays to the multi-billion dollar project....

But the ruling in the case 752 Pacific, LLC v. Pacific Carlton Development Corp. could cause additional legal hurdles for the litigation-plagued project that once had expected to bring the New Jersey Nets to Brooklyn as early as 2006.

It Came From the Blogosphere: Appeals Court Ruling

Because one oft-criticized developer being involved in Atlantic Yards just wasn't enough, an appeals court has upheld a judge's 2007 decision that Brooklyn kingpin (and occasional Manhattan dabbler) Shaya Boymelgreen improperly sold his lease to a Pacific Street building within the project's footprint to AY developer Forest City Ratner. What does this mean? Atlantic Yards Report explains: "The ruling can't stop the state from using eminent domain to take the properties, but it might make it more costly."

This just in from Atlantic Yards Report: In a rare court ruling unfavorable to Atlantic Yards, a state appeals panel has upheld a lower court’s 2007 ruling that invalidated Forest City Ratner’s long-term lease on two properties in the project’s footprint.The ruling could pose another hurdle for the developer at a moment when the project is already being held up by the recession.
The earlier decision found that the developer Shayna Boymelgreen, who is a tenant at a one-acre site on Pacific and Carlton that includes a six-story building and a parking lot, sold his lease to Forest City without his landlord’s permission. The landlord, Henry
Weinstein, is challenging the state’s right to condemn property under eminent-domain law, so Mr. Boymelgreen’s sale of the lease to Forest City would have allowed Forest City to do a partial end run around Mr. Weinstein.

April 27, 2009

Waiting for the judges to rule in both major AY cases (and watching Forest City Ratner repeat a discredited lie)

Atlantic Yards Report

Norman Oder outlines the arguments from latest briefs filed in the appeals of the environmental and eminent domain cases against Bruce Ratner's Atlantic Yards plan. At times the opposing lawyers get a little feisty and Oder catches Ratner attorney Jeffrey Braun in a lie, though Braun filed an affirmation of the Empire State Development Corporation's briefs "under penalty of perjury":

Braun also asserted that AY would serve as “a powerful engine of economic growth,” claiming that that the environmental impact statement (EIS] estimated that the project would create 15,000 construction jobs and between 1300 and 6400 permanent jobs, as well as “$4.4 billion in net tax revenues for the City and the State over 30 years.”

Except the EIS said no such thing. In January 2008, Braun used the same language, then, after AYR and Baker called him out on it, admitted he was “mistaken.” (See graphics below, by Abby Weissman.) It's time for him to amend the affirmation he filed in court earlier this month.

April 2, 2009

Qualms about AY from IBO and FCE’s new warnings of potential setbacks cited in appeal of case that called for new hearing

Atlantic Yards Report

A lawsuit filed against the Empire State Development Corporation (ESDC) by residents in two buildings in the Atlantic Yards footprint may gain new life, should a state court consider an Independent Budget Office representative’s statement questioning the benefits from the current version of the project, as well as a financial document filed by Forest City Enterprises admitting new potential setbacks.

George Locker, who represents residents of two buildings in the Atlantic Yards footprint, today will file a motion to enlarge the record for his planned appeal of a case, dismissed last September, which argued that the ESDC was violating a provision of state law that requires disposition of properties within a decade and should hold another hearing because the project has changed considerably.
...

The appellants are eight rent-stabilized tenants living at 624 Pacific Street and 473 Dean Street. Originally, there were 13 plaintiffs, but five have settled with the developer and moved away--a sign, as with the purchase of a building on Dean Street, that not everyone’s willing to wait out an uncertain situation.
...

“No one knows what Atlantic Yards-2009 has become,” the motion states. “Consequently, no one knows the public benefit of the project, and no one, particularly ESDC, knows or can know whether proceeding with the exercise of eminent domain is lawful and appropriate, given the drastically reduced, or non-existent, benefit to the public and the high risk of non-completion and default.”

March 31, 2009

Atlantic Yards Opponents Ask to Appeal Again

Brooklyn Daily Eagle
By Ryan Thompson

DOWNTOWN BROOKLYN – There could perhaps be yet another appeal filed in the vast array of lawsuits aimed at stopping Atlantic Yards.

According to a press release from petitioner Develop Don’t Destroy Brooklyn (DDDB), it and a dozen other community group co-petitioners filed a motion Monday morning to seek permission to appeal to the state’s highest court, the New York Court of Appeals in Albany.
...
So far, Atlantic Yards opponents have not won any substantive case that would stop or substantially alter Atlantic Yards through court directive.

The lawsuits, however, seem to be tangentially successful, causing substantial delays and excessive costs to the 22-acre project that could possibly never get fully built, factoring in the nation’s current economic crisis. Last week, the project’s architect, Frank Gehry, made headlines when he commented to The Architect’s Newspaper that he was skeptical that Atlantic Yards would ever happen.

March 30, 2009

On the same day that developer Forest City Enterprises asserted in a press release that "only one material lawsuit" is pending in the Atlantic Yards case, project opponent Develop Don't Destroy Brooklyn (DDDB) announced that one other lawsuit may indeed be alive.

In an effort to reverse an appeals court’s February decision rejecting an appeal of a trial judge's dismissal of the case challenging the Atlantic Yards environmental review, DDDB and 25 co-plaintiff community and civic groups have asked (PDF) the Appellate Division, First Department, to allow the state’s highest court to review the decision, arguing that the blight study by Empire State Development Corporation (ESDC) did not contain simply errors or misjudgments but rather is associated with “evidence of corruption” and that a for-profit company should not be able to lease a publicly-owned arena for a dollar a year.

Decision said to be tainted

The ESDC, argue the appellants, was “purposefully disregarding the contrary economic conditions and development trends which it asked its own consultant, AKRF, to study; knowingly misrepresenting the effect of the Vanderbilt Rail Yards on the non-ATURA [Atlantic Terminal Urban Renewal Area] portion as impeding development, while the non-ATURA portion and adjacent areas were enjoying substantial, desirable private redevelopment and rapidly rising property values; and knowingly misrepresenting the crime rate in the non-ATURA portion as higher than surrounding areas, while its own data showed just the opposite.”

“Simply put, New York law requires ESDC to do more than simply throw out a number of purported justifications for its “blight” determination without regard to truth, accuracy, or logic, secure in the knowledge that as long as any one of its proffered justifications can be called ‘rational,’ its blight determination will not be disturbed by judicial review,” the petitioners argue.

Thus the “the court should find the agency’s ultimate determination irremediably tainted, regardless of whether a few of its proffered justifications might arguably be valid.”

NEW YORK, NY—Develop Don’t Destroy Brooklyn, and 25 community group co-petitioners, filed a motion today to the Appellate Division (First Department) seeking the right to appeal in the state’s top court—the Court of Appeals—an adverse ruling on their case challenging the Empire State Development Corporation’s (ESDC’s) Environmental Impact Statement and Blight Study for Forest City Ratner’s Atlantic Yards development proposal.

On February 26 the appellate court ruled against the petitioners.

A key issue in the case is the state’s designation of the developer’s handpicked development site as "blighted." The court ruled that the state’s "blight" designation had a "rational basis."

However, Justice Catterson—one of the four judges on the panel—wrote a concurring opinion which raises substantial questions about that basis, suggesting there was no rational basis, but rather a decision to facilitate Forest City Ratner in its effort to control 22 valuable acres in the heart of Brooklyn.

“Because I believe that the New York Urban Development Corporation Act…is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized,’ I write separately. I recognize that long-standing and substantial precedent requires a high level of deference to the Empire State Development Corporation's finding of blight. Reluctantly, therefore I am compelled to accept the majority's conclusion that there is sufficient evidence of "blight" in the record under this standard of review. However, I reject the majority's core reasoning, that a perfunctory ‘blight study’ performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.

…ESDC's contention that as 'a matter of law,' ESDC could only look at conditions contemporaneous with the study, which was conducted years after the [project’s] announcement, is ludicrous on several levels."
(Emphasis added.)

The motion filed today asks the Appellate Division to allow petitioners to appeal to the Court of Appeals. The petitioners’ motion papers focus on the rationality of the ESDC’s determination that the project site was blighted, and that the ESDC improperly designated the Barclays Center Arena as a “civic project” under the Urban Development Corporation Act.

The petitioners believe that that Appellate Division misapplied the relevant legal standard in reviewing ESDC’s blight designation. The Court relied on older cases that were reviewing blight determinations in taxpayer lawsuits. Those cases are very limited and allow a person to challenge government spending that is clearly unauthorized. Taxpayers cannot challenge decisions that they believe are simply unwise and must show clear illegality, so the burden of proof on the challenger is very high. In contrast, the case against Atlantic Yards is an Article 78 challenge where petitioners must only show that ESDC’s decision was arbitrary and capricious. That too is a high standard but not as high as the taxpayer lawsuit.

“As Justice Catterson properly noted, ESDC’s failure to consider the context of existing economic development trends in Prospect Heights should make the blight determination per se irrational,” said lead attorney Jeffrey Baker.

Specifically the petitioners would like the Court of Appeals to address and clarify these issues:

That the Appellate court has clouded the “arbitrary and capricious” standard of review of ESDC’s determinations with the more deferential standard of a taxpayer action and,

Incorrectly conflated constitutional requirements applicable to condemnation issues with the specific statutory requirements of the Urban Development Corporation Act and the State Environmental Quality Review Act.

March 1, 2009

Panel Rejects Anti-Atlantic Yards Suit; Plaintiffs Will Appeal

The Village Voice
by Roy Edroso

Develop Don't Destroy Brooklyn's legal challenge to the contentious Atlantic Yards project has been rejected, 3-0, in an Appellate Division panel ruling. According to the New York Law Journal, DDDB contended that officials improperly judged some properties "blighted" so that they could be seized for the project or their owners thus intimidated into selling, and that a favorable environmental impact ruling did not take into account the possibility of terrorist attack. The ruling expresses sympathy with the plaintiffs' claims, but held that they "have relatively little to do with the project's legality and nearly everything to do with its socio-economic and aesthetic desirability outside," and are thus outside the purview of a legal tribunal and should be handled by "the policy-making branches of government."

DDDB says they'll take their case to the Court of Appeals. The full decision will be released Monday is available here. DDDB reveals that the fourth judge of the panel, who concurred without joining the opinion, admitted that in her opinion "the New York Urban Development Corporation Act... is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are 'underutilized.'"

And this brings us to the NYC local issue of Atlantic Yards, a giant shitpile of corruption if there ever was one. If you’re located outside of New York City, you might be able to view this project like you view something corrupt where you live. The Big Dig in Boston, the trailers with formeldahyde in them in New Orleans, it’s all part of a great American tradition.

Another AtlanticYards Appeal Fails

The Eagle reports on this past Thursday's decision by the Appellate Court:

After the New York State Supreme Court dismissed yet another lawsuit that seeks to stop Forest City Ratner’s Atlantic Yards project from being built in Brooklyn, opponents of the project appealed.

Here's yet another mention of the 22 lawsuit wins that Forest City Ranter claims, though nobody knows where that number comes from.

That appeal was denied yesterday by the Appellate Division, First Department – making opponents of Atlantic Yards now 0-22 as far as the lawsuits are concerned. The plaintiffs in several cases filed in state and federal courts have lost at all levels of litigation, and all appeals have been denied or refused by the courts.

The lawsuits, however, seem to be tangentially successful, causing substantial delays and excessive costs to the $4 billion project that could possibly never get fully built, factoring in the nation’s current economic crisis.

February 27, 2009

Appellate Court Decision - Media Wrapup (Part Deux)

A state appellate court struck down a crucial, but not final, legal challenge to Bruce Ratner’s Atlantic Yards project Thursday, as the court rejected a challenge to the environmental review brought by project critics.

Mr. Ratner is still awaiting a key decision on a lawsuit that challenges the use of eminent domain for the project, which calls for the development of a Nets basketball arena and more than 6,000 apartments near downtown Brooklyn. The project has struggled in the economy and has been unable to proceed due to the legal challenges; and at the same time, the developer is struggling to make the project financially feasible in the rough economic climate. Many observers expect the eminent domain lawsuit to ultimately be dismissed given the relatively broad power New York eminent domain laws give to the state.

Forest City Ratner Cos., developer of the Atlantic Yards project in Brooklyn, has won another legal round as an appellate court upheld the dismissal of a challenge to the project. The challengers--an advocacy group known as Develop Don’t Destroy Brooklyn and 25 other community groups--say they will appeal.

Despite voicing uneasiness with some aspects of the case, an Appeals Court panel did not find enough evidence of improper conduct on the part of the ESDC to rule in favor of the 26 neighborhood groups challenging the Atlantic Yards project on the basis of the project's "sham" environmental review. While the court did not find legal grounds to grant the opposition's petition, it did sympathize with its overall plight....

Yesterday was a bad day for Brooklyn: the State Supreme Court Appellate Division ruled in FAVOR of the Empire State Development Corporation and AGAINST the community in the challenge to the state's environmental review and "blight" determination for the Atlantic Yards proposal.

Yesterday a state appellate court ruled that the Empire State Development Corp. appropriately reviewed and approved Brooklyn's Atlantic Yards project, clearing one more hurdle for developer Forest City Ratner in its attempt to build an arena and...whatever the heck else Atlantic Yards is nowadays.

Appellate Court Decision - Media Wrapup

The $4 billion Atlantic Yards project cleared a hurdle Thursday when a state appellate court dismissed a legal challenge by the development’s opponents.

The ruling upheld a lower court decision that the state acted properly in approving the project’s environmental impact study. A separate case challenging the state’s use of eminent domain in taking land for the project, slated to include an arena for the Nets, is also being heard by the appellate court.

Developer Bruce Ratner, who has been locked in a long-running battle with community groups over the project, said in a published report that it’s “time to put these cases behind us and get to work.”

The group that brought the case vowed to take it to the Court of Appeals, the state’s highest court.

“The Court of Appeals is the only court that can break the chain of previous cases, and we eagerly await our opportunity to argue before it," Jeffrey S. Baker, the attorney for Develop Don’t Destroy Brooklyn, said in a statement on the group’s Web site.

Forest City Ratner Cos. scored a major victory towards building its Atlantic Yards mega development on Thursday when a state appellate court unanimously ruled that the Empire State Development Corp. appropriately reviewed and approved the project.

Develop Don’t Destroy Brooklyn, a nonprofit community group, which brought the suit, said it would appeal. The group challenged the environmental review process and alleged that the site shouldn’t have been designated as blighted.

...

The 22-acre development has faces more than legal challenges. Financing for the project is a major hurdle. Banks have virtually stopped lending, especially for huge projects like Atlantic Yards. The estimated cost of the Frank Gehry-designed complex has ballooned to $4 billion from $2.5 billion. The cost of the arena alone, the future home of the Nets basketball team, jumped 40% to $1 billion.

An appellate court unanimously upheld a state supreme court ruling Thursday that the environmental review process for Brooklyn's Atlantic Yards was completed correctly.

In a statement, developer Bruce Ratner of Forrest City Ratner said the decision validates the environmental review process. He added it is time to get work on the basketball arena and 16 high-rise buildings that would encompass the $4 billion project.

Mayor Michael Bloomberg and Brooklyn Borough President Marty Markowitz agreed with the court's decision and say the project will create jobs and affordable housing.

An opponent of the project, Develop Don't Destroy Brooklyn, says it will take its case to the state Court of Appeals.

A state appeals court has upheld a lower court's ruling dismissing a lawsuit filed by a coalition of community groups opposed to the massive Atlantic Yards project in Brooklyn.

The appeals court decision, issued Thursday, says the state's environmental review of traffic, crowds, potential terrorism and other concerns satisfied legal requirements. The $4 billion, 22-acre development includes an arena for the New Jersey Nets, office towers and thousands of apartments near downtown Brooklyn.

The proposed Atlantic Yards project in Brooklyn — scheduled to be the Nets' future home — earned a court victory Thursday when a New York appellate panel rejected a lawsuit by community activists who oppose the plan.

The suit, which is unrelated to a case heard last week involving the use of eminent domain at the site, charged that the Empire State Development Corp.'s environmental review of the site was inadequate. The groups — led by Develop Don't Destroy Brooklyn — contended, among other complaints, that the state agency did not analyze the risk of a terrorist attack at the site and that the proposed construction schedule was "irrational."

Three judges, however, wrote in a 13-page majority opinion that "our power to review the substantive adequacy of an [environmental impact statement] is extremely limited."

The developer Bruce C. Ratner chalked up a legal victory for his proposed Atlantic Yards development in Brooklyn on Thursday when a state appellate court ruled against opponents who had challenged the $4 billion project on environmental grounds.

In the opinion, the court agreed with a lower State Supreme Court decision that the state had acted properly in reviewing and approving the project, which includes an arena for the Nets and up to 6,000 apartments on 22 acres. Still, the project has a number of other roadblocks to clear, including another lawsuit, before it can break ground.

Mr. Ratner, however, was elated. “Once again the courts have decided in favor of Atlantic Yards,” he said in a statement released Thursday afternoon. “This project has been reviewed as thoroughly as any in the city and now it is time to put these cases behind us and get to work.”

Although the court reached a unanimous decision, Judge James M. Catterson broke with his colleagues, saying that the state’s urban redevelopment law “is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are ‘underutilized.’” But, he said he was hesitant to end the longstanding practice of deferring to the state’s economic development authority.

NoLandGrab: Some of these articles quote Bruce Ratner as saying “This project has been reviewed as thoroughly as any in the city and now it is time to put these cases behind us and get to work.” He's clearly hoping that nobody recalls that this is a State project, and has thus bypassed all city review. Also, with another lawsuit pending and enormous economic problems facing the project, it's going to be awfully hard to begin any work on the project.

Concerns 'Legitimate' But Project Proceeds

New York Law Journal
By Mark Fass

Here is a review of yesterday's decision by the New York State Appellate Division.

Proponents of the Atlantic Yards, the largest single-developer project in the history of New York, scored another legal victory yesterday as a state appeals court upheld the dismissal of a challenge by the coalition Develop Don't Destroy Brooklyn.

By a vote of 3-0 with one judge concurring, the Appellate Division, First Department, rejected numerous claims by Develop Don't Destroy, the most active opponent of the 16-building development regarding the lead agency's environmental impact statement and eminent domain findings.

The coalition might have legitimate grievances, the majority held, but it did not set forth any legitimate claims.

"While we do not agree with petitioners' legal arguments, we understand those arguments to be made largely as proxies for very legitimate concerns as to the effect of a project of such scale upon the face and social fabric of the area in which it is to be put," the majority held in its unsigned opinion, Develop Don't Destroy v. Urban Development Corporation, 104597/07.

How Unappealing

The Architect's Newspaper Blog

This blog entry points out that despite the latest legal victory for the developer of the proposed Atlantic Yards, it's not at all clear that the project can be built.

The folks over at Develop Don’t Destroy Brooklyn have been paper cutting Forest City Ratner for years now, with lawsuit after lawsuit, but they may almost out, and still without a victory–at least not a legal one. Today, the Appellate Division of the state Supreme Court ruled unanimously that the ESDC had not erred in its filing of the environmental review of Atlantic Yards.

The case wound up at the appellate division after it was declined by a lower court, but that hasn’t stopped Dan Goldstein and company without already pushing the issue to the next level:

Hopefully, the Court of Appeals will provide a standard to avoid the ludicrous outcome that, despite the significant questions about the improper motives of the ESDC and the inappropriate influence of the developer, the court’s hands are tied and constrained to uphold the approval of such a disastrous project.

...

And so now onward to destiny. And more billable hours. Which may well be the point. With the collapse of the economy, Forest City Ratner is running out of time to find financing for the project before certain contracts expire. And so, in losing and thereby dragging things out after half-a-dozen legal challenges, DDDB is actually winning.

February 26, 2009

For you legal eagles out there, here's a link to the New York State Appellate Division, First Department's ruling today in the appeal of the challenge to the Atlantic Yards Environmental Impact Statement.

February 20, 2009

As oral argument in state eminent domain case approaches, questions of a cost-benefit analysis and a different state standard

Atlantic Yards Report

Norman Oder previews Monday's oral argument in a primer to the state-level challenge to the use of eminent domain for Atlantic Yards, Goldstein et al. v. Empire State Development Corporation.

The Atlantic Yards eminent domain case, after dismissal in the federal courts, goes to state court Monday, February 23, when the oral argument will be heard before the Appellate Division, Second Department. (That division, as opposed to a lower court, is designated to hear all cases challenging New York State’s Eminent Domain Procedure Law (EDPL).)

The new case has to be considered a long shot. The EDPL allows only 15 minutes for oral argument, and there’s no opportunity to cross-examine witnesses or acquire documents through discovery--reasons why critics say New York law is in desperate need of reform.
...

Some but not all of the arguments in Goldstein et al. v. Empire State Development Corporation (ESDC) reprise those made in the federal case, though, in one new argument, the plaintiffs may have established an advantage.

They contend that, in order for the state to assess whether public benefits from the project would trump the private ones, the ESDC should have conducted an analysis, but didn't do so.

The ESDC's response is to proffer a report that was not released publicly before the project was approved and did not truly represent an analysis, the plaintiffs point out.

February 2, 2009

The clock ticks on the Atlantic Yards litigation, but reports of project's death "greatly exaggerated" (as per DDDB)

Atlantic Yards Report

Though Brooklynites have been on the Atlantic Yards Deathwatch for a few months, Develop Don't Destroy Brooklyn is cautiously reminding supporters that Bruce Ratner's highly subsidized eminent-domain-abusing arena and high rise project is not dead yet.

However, even the more guarded Norman Oder of Atlantic Yards Report has revised the odds that the arena will be built closer to 50-50.

But what about NJ Nets CEO Brett Yormark?

New Jersey Nets CEO Brett Yormark, in a 12/2/08 interview, promised groundbreaking for the arena in 2009, based on the following schedule:

I would say 2009 is the year. I say that for lots of different reasons. We've got really one piece of major litigation that remains... the eminent domain case. There will be a hearing in January, hopefully a favorable decision by the end of March...

Oder explains in today's article that the above timeline has already slipped.

January 6, 2009

Besides major lawsuits, other expected litigation could delay arena construction

Atlantic Yards Report

Attorney George Locker isn't finished suing to block the Atlantic Yards project, and those pending and potential lawsuits could delay arena construction by two more years.

Besides pending major lawsuits over eminent domain and the Atlantic Yards environmental review, which may be resolved this year, other expected litigation may delay the start of arena construction, perhaps into 2010 or 2011. That means the best-case arena opening date could be 2012 (as I’ve already argued), or 2013, rather than the announced 2011.

That estimate comes from attorney George Locker, who represents tenants in two Atlantic Yards arena block footprint buildings. Without an assessment by the Empire State Development Corporation (ESDC) or independent authorities, I can’t be sure if the timetable estimate is solid, but it should certainly be part of the conversation.

State Court Justice Joan Madden takes eight months to rule against a community challenge to the Atlantic Yards environmental review. She punts on the crime statistics and thus doesn't fully assess the issue of blight.

A Forest City Ratner official admits the legal battle over Atlantic Yards cast doubt on the developer's ability to get arena financing and requests that the appeal in the case challenging the AY environmental review to be heard in May rather than September. The request is not granted.

FEBRUARY

A three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously upholds Judge Nicholas Garaufis’s dismissal of the Atlantic Yards eminent domain case and suggests (correctly, it turned out) that a U.S. Supreme Court appeal would be tough to mount.

MAY

The ESDC's 10-year project "is a public relations and marketing scheme; it does not exist in a legally enforceable form," argues George Locker, a lawyer for residents of two buildings in the AY footprint. The ESDC objects to "purported quotations" about the timetable from Bruce Ratner in the New York Times and instead points to Ratner's Daily News op-ed.

JUNE

The U.S. Supreme Court declines to hear an appeal of the federal eminent domain suit, setting up for a longshot state court challenge. (There's an interesting fib in the ESDC's brief.)

AUGUST

The Atlantic Yards eminent domain case is filed in state court and, though most of the arguments have already been dismissed in the (likely) more hospitable federal court system, the new case adds a novel claim.

SEPTEMBER

In the appeal of the case challenging the AY environmental review, two of five justices seem skeptical of state’s blight claim, but questions in court do not predict a final ruling.